LY (Migration)

[2020] AATA 4694

LY (Migration) [2020] AATA 4694 (9 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Nguyen Tuong Vi LY
Ms Thi Viet Anh VU

CASE NUMBER:  1810532

HOME AFFAIRS REFERENCE(S):          BCC2017/1235159

MEMBER:Antonio Dronjic

DATE:9 November 2020

PLACE OF DECISION:  Melbourne

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(2) of Schedule 2 to the Regulations.

Statement made on 09 November 2020 at 3:42pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 – Temporary Residence Transition stream – pastry cook – tribunal set aside nomination refusal – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360(2)(a)

Migration Regulations 1994, Schedule 2, cl 186.223(2), rr 1.13A, 1.13B

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 11 April 2018 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 31 March 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 (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 pastry cook.

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 nomination application lodged by the applicant’s employer, Thai Rock Pty Ltd was refused by the Department on 5 March 2018.

6. The delegate also refused to grant subclass 186 visa to the second named applicant on the ground that the second named applicant did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 186 visa, and there was no evidence that the second named applicant met the primary visa criteria in her own right.

7. The applicants applied to this Tribunal for review of the primary decision on 14 April 2018 and were represented in relation to the review by their registered migration agent.

8. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. 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.

10. 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.

11. The Department's records indicate that the first named applicant's employer, Thai Rock Pty Ltd, made an application to have the position of pastry cook approved, with the first named applicant as the nominee, with the Department on 31 March 2017.

12. This nomination application was refused on 5 March 2018 and the employer sought review of that decision with the Tribunal on 8 March 2018. On 4 November 2020, 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 Thai Rock Pty Ltd (see AAT/MRD decision 1806265 of 4 November 2020). Therefore, the Tribunal finds that cl.186.223 (2) is met by the first named applicant.

13. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the second named applicant applied on the basis of being a member of the family unit of the primary applicant, her applications will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration.

    DECISION

14. 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(2) of Schedule 2 to the Regulations.

    Antonio Dronjic
    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.