Lam (Migration)

[2021] AATA 3137

Lam (Migration) [2021] AATA 3137 (20 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Man Yee Lam
Mr Wai Chi Li

CASE NUMBER:  1825916

HOME AFFAIRS REFERENCE(S):          BCC2017/4699844

MEMBER:Terrence Baxter

DATE:20 July 2021

PLACE OF DECISION:  Brisbane

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 criterion for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.223(2) of Schedule 2 to the Regulations.

Statement made on 20 July 2021 at 11:25am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Restaurant Manager –tribunal set aside nomination decision–nomination approved –subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311

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 Home Affairs on 27 August 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 9 December 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

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 (Cth) (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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Restaurant Manager for Ivapine Pty Ltd as trustee for the PMI Family Trust (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 23 July 2018 and that accordingly the applicant did not satisfy cl 186.223(2) and did not meet cl 186.223 as a whole.

6. The delegate also found that the second named applicant could not be granted a Subclass 186 visa, as he did not meet the secondary visa criterion (cl 186.311) requiring him to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 5 September 2018.

8. The applicants appeared before the Tribunal on 21 April 2021 to give evidence and present arguments.

9. The Tribunal exercised its discretion to hold the hearing by videoconference through MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference.

10. The applicants were represented in relation to the review by their registered migration agent. The representative also attended the Tribunal hearing by videoconference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

13. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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.

14. 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 reg 1.13A and reg 1.13B of the Regulations); 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.

15. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Restaurant Manager approved, with the applicant as nominee, on 9 December 2017. The nomination application was refused on 23 July 2018 and the nominator sought review of that decision with the Tribunal on 13 August 2018.

16. On 20 July 2021, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by Ivapine Pty Ltd as trustee for the PMI Family Trust.

17. Therefore, cl 186.223(2) is met in respect of the applicant.

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

19. The second named applicant applied on the basis that he is a member of the family unit of the applicant. His application will also be determined on remittal to the Department for reconsideration.

    DECISION

20. 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 criterion for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.223(2) of Schedule 2 to the Regulations.

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.