Lu (Migration)

[2021] AATA 201

Lu (Migration) [2021] AATA 201 (22 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Qian Lu
Mr Hao Zhang
Ms Xiyan Zhang

CASE NUMBER:  1931258

HOME AFFAIRS REFERENCE(S):          BCC2018/2434202

MEMBER:Wan Shum

DATE:22 January 2021

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 22 January 2021 at 3:14pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – subject of approved position nomination – refusal of related nomination application set aside on review – employer’s explanation of claimed adverse information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cl 186.223

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 17 October 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 June 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. 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 Accountant. This stream is designed for Subclass 457 visa holders who have worked for their employer for at least two years, and that employer has offered them a permanent position in the same occupation. The employer in this case is Addsum Accountants Pty Ltd. The employer applied for approval for a position on 6 June 2018 but it was not approved.

4. As a consequence, the delegate in this matter refused to grant the visas because the applicant did not meet 186.223 of Schedule 2 to the Regulations. 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).

5. The employer sought review of the decision not to approve the nomination and the applicant also sought review in relation to the visa refusal decision.

6. The Tribunal approved the nomination relevant to this matter on 20 January 2021.

7. For the purposes of cl.186.223, the applicant must have been identified in the nomination and made in relation to a Temporary Residence Transition stream visa, 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. The Tribunal has sighted the application made by the employer for the nomination which sought to meet the requirements under the Temporary Residence Transition stream and identified the applicant. The letter acknowledging receipt of the application set out the TRN (or nomination transaction number) of EGOIFRZKHQ. The details of the nomination given on the visa application match that nomination application and the applicant made the necessary declaration which meets the requirements of cl.186.223(1)(c). The Tribunal finds that the requirements of cl.186.223(1) are satisfied.

8. In addition, cl.186.223 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.

9. The applicant is currently employed by the nominator and the Tribunal finds that the position is still available to the applicant. The visa application was made prior to the nomination being approved. Therefore, the Tribunal finds that the application was not made more than six months after the nomination of the position was approved. The nomination has not been withdrawn.

10. The Tribunal was given information from the Department that an Immigration officer and/or AUSTRAC considered reflected suspicious transactions made by the employer. However, no details of why these transactions were suspicious were provided to the Tribunal. The Tribunal has viewed the Excel spreadsheets itself and was unable to identify any information that would amount to ‘adverse information’ (as defined). The Tribunal spoke with the Managing Partner of the employer regarding AUSTRAC and transactions identified as suspicious and accepts the explanation given. The Tribunal notes that the ATO has conducted an e-Audit of the employer in 2019 and no relevant concerns were identified. The Tribunal does not consider that the Excel spreadsheets contain information that amounts to adverse information (as defined) known to Immigration about the nominator or person associated with the nominator. The Tribunal finds that there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person. 

11. Therefore, 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

    
    

    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.