Luu (Migration)

[2019] AATA 2396

Luu (Migration) [2019] AATA 2396 (17 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Thanh Binh Luu
Ms Thi Hai Nguyen
Master Antony Quang Vinh Luu
Miss Linh Thuy Nguyen Luu

CASE NUMBER:  1710491

HOME AFFAIRS REFERENCE(S):           BCC2016/3004280

MEMBER:Catherine Carney-Orsborn

DATE:17 April 2019

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 17 April 2019 at 4:21pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Metallurgical or Materials Technician – nomination approved upon review – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.233; rr 1.13, 5.19

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 15 May 2017 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 9 September 2016. 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 (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 Temporary Residence Transition stream, to work in the nominated position of Metallurgical or Materials Technician.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because there was no approved nomination.

6. The first named applicant appeared before the Tribunal on 19 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator.

7. The applicants were represented in relation to the review by their registered migration agent.

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 there is an approved nomination.

   Nomination of a position

10. 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.

11. 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.

12. The applicant’s nominating employer, Wentworth Metals Group Pty Ltd, applied to the Department on 9 September 2016 for the approval of the position of Metallurgical or Materials Technician.

13. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision.

14. On 10 April 2019, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant.

15. On the evidence before it, the Tribunal is satisfied that:

    ·the person who will employ the applicant was the nominator in the application for approval;

    ·on the evidence before the Tribunal there is no adverse information known to Immigration about the nominator or a person associated with the nominator;

    ·the visa applicant is identified as the holder of a subclass 457 visa in the nomination;

    ·it has not been withdrawn and at the time of decision, the criteria for approval in r.5.19(3) continue to be met;

    ·the position was the subject of the declaration that was required to be made as part of the current visa application;

    ·the appointment 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.

16. Therefore, the Tribunal finds that the first named applicant meets cl.186.223.

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

    DECISION

18. 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

    Catherine Carney-Orsborn
    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.