Lee (Migration)

[2024] AATA 249

Lee (Migration) [2024] AATA 249 (12 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Siew Ling Lee
Ms Foong Ping Chai

REPRESENTATIVE:  Ms Dalila Machado Medieros Allen

CASE NUMBER:  2106880

HOME AFFAIRS REFERENCE(S):          BCC2019/5710997

MEMBER:De-Anne Kelly

DATE:12 February 2024

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

·cl 186.223 of Schedule 2 to the Regulations.

Statement made on 12 February 2024 at 12:52pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Pet Groomer – nomination approved upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

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 18 May 2021 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 12 November 2019. 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 Pet Groomer.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the employer nomination application by TMBC LIM Pty Ltd as trustee for TMBC Lim Family Trust was refused being the application referred to in cl.186.223(1).

6. The applicant appeared before the Tribunal on 9 January 2024 to give evidence and present arguments.

7. The applicant was represented in relation to the review very professionally by Ms Dalila Allen.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicants meet cl.186.223(2).

   (2)       The Minister has approved the nomination.

   Nomination of a position

10. Clause 186.223 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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); 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.

12. The visa application was acknowledged by the Department on 12 November 2019 and is consistent with the declaration in s.1114B(3)(d) of Schedule 1 being made in the application for the grant of the visa.

13. Ms Michelle Lim, director of TMBC LIM Pty Ltd as trustee for TMBC Lim Family Trust made the nomination and signed the Employment Contract demonstrating that they are the person who will employ the applicant and are the person who made the nomination. The application made was for the approval of the position of Pet Groomer.

14. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision. The Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant. The nomination has therefore been approved and has not been withdrawn by the Ms Michelle Lim, director of TMBC LIM Pty Ltd as trustee for TMBC Lim Family Trust.

15. There is no information before the Tribunal constituting adverse information regarding the company or its director. There is no evidence before the Tribunal that the Department had adverse information regarding Ms Michelle Lim, director of TMBC LIM Pty Ltd as trustee for TMBC Lim Family Trust, being the person who made the nomination or their associates.

16. The most recent employment contract demonstrates that the position is still available to the applicant. The visa application was made on 12 November 2019, and therefore was made no more than six months after the nomination of the position was approved.

17. Therefore, cl.186.223(2) and cl.186.223 are met.

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. Ms Foong Ping Chai was a secondary applicant on the application for Employer Nomination (Permanent) (Class EN) visas (Subclass 186) and sought to satisfy cl.186.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicant on the basis they did not satisfy cl.186.311. This clause provides as below. The secondary applicant lodged an application with the Tribunal to review the decision to refuse the Visa application.

    186.311

    The applicant:

    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

20. Because the primary visa applicant’s Subclass 186 visa application was refused, the secondary visa applicant was a member of the family unit of a person who did not hold a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

21. The Tribunal considered the appropriate course was to remit the primary visa applicant’s visa application to the Minister to reconsider the remaining criteria for the visa. The Tribunal considers it is the appropriate course to remit the secondary applicants visa application to the Minister.

    DECISION

22. 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.

    De-Anne Kelly
    Member

    
    

    ATTACHMENT A

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

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.