Lin (Migration)

[2021] AATA 110

Lin (Migration) [2021] AATA 110 (20 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tsun Hoi Lin
Ms Yun Pang
Ms Brittany Lin

CASE NUMBER:  1814245

HOME AFFAIRS REFERENCE(S):          BCC2017/1437961

MEMBER:Joanne Bakas

DATE:20 January 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

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

Statement made on 20 January 2021 at 6:44pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – subject of approved nomination – refusal of related position nomination set aside on review – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223 (2)

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 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 20 April 2017. The delegate refused to grant the visas on 14 May 2018.

2. The delegate made the decision on the basis that the applicant did not meet cl 186.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the nomination of the position had not been approved (186.223(2)).

3. On 14 January 2021 the Tribunal decided to set aside the Department’s decision and substituted a decision approving the nomination.

4. As the relevant nomination has now been approved, it follows that the requirement in cl.186.223(2) is now met.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the relevant nomination has been approved.

   Nomination of a position

7. Clause 186.223 essentially 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. In addition, this criterion also requires that the nomination has been approved (cl.186.223(2)).

8. As noted above, the relevant nomination in respect of the applicant was refused by the Department. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 14 January 2021, the Tribunal set aside the Department's decision and substituted a decision approving the nomination.

9. As the relevant nomination in respect of the applicant has been approved, the applicant accordingly meets the requirement in cl. 186.223(2).

10. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the grant of the visas.

11. As the Tribunal has found that the primary applicant satisfies cl. 186.223(2), it is appropriate that the secondary applicants’ applications are also reconsidered by the Department by reference to the outcome of the primary applicant’s application.

    DECISION

12. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

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

    Joanne Bakas
    Member