KAWEEWATTANAKORN (Migration)

[2018] AATA 3384

KAWEEWATTANAKORN (Migration) [2018] AATA 3384 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Sunisa Kaweewattanakorn
Mr Charkpob Ketgovit

CASE NUMBER:  1607815

DIBP REFERENCE(S):  BCC2015/2112757

MEMBER:Wan Shum

DATE:2 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.223 of Schedule 2 to the Regulations.

Statement made on 02 August 2018 at 3:29pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 186.233(3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 May 2016 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 186 (Employer Nomination Scheme) visas on 23 July 2015.

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Massage Therapist. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation. The employer in this case is Orchid Traditional Thai Massage Pty Ltd. The employer applied for approval for a position on 23 July 2015. The application was not approved.

5. The delegate refused to grant the visas because the applicant did not meet 186.223 of Schedule 2 to the Regulations because the nomination had not been approved.

6. The nominator sought review of that decision and was represented in relation to the review by a registered migration agent. The applicant also sought review in relation to the visa refusal decision.

7. The Tribunal hearing was held on 27 June 2018 and the applicant appeared to give evidence and present arguments. The Tribunal also received oral evidence from Mr Chakrop Ketogvit who is her husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages when required. The representative attended the Tribunal hearing.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

10. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

11. On 2 August 2018, the Tribunal approved the nomination. The Tribunal is not aware of any  ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person. As the position is still available to the applicant and the visa application was made prior to the approval of the nomination, all of the requirements of cl.186.223 have been met.

12. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

13. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl. 186.223 of Schedule 2 to the Regulations.

    Wan Shum
    Member