Nguyen (Migration)

[2020] AATA 5353

Nguyen (Migration) [2020] AATA 5353 (16 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Duong Truc Thuy Nguyen
Mr Van Manh Hoang
Miss Isabella Truc Thuy Hoang
Mr Wilson Nguyen Hoang

CASE NUMBER:  1724954

HOME AFFAIRS REFERENCE(S):          BCC2017/2324802

MEMBER:Danielle Galvin

DATE:16 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

Statement made on 16 November 2020 at 11:01am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Hair or Beauty Salon Manager – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 26 September 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 29 June 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 Salon Manager in the nominated occupation of Hair or Beauty Salon Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination lodged by Hoang An Pty ltd AFT The Hoang Khang Family Trust, was refused by a delegate. This was the sole basis for the refusal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 s.360(2)(a) of the Act.

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

   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 Tribunal has had regard to the material provided to the Department in the application, as well as the material provided to the Tribunal. Taking into account information in the application form and attached to the application:

    ·    the position to which the application relates was nominated in an application for approval that sought to meet the requirements of r.5.19(3);

    ·     the applicant was identified as the holder of a subclass 457 visa;

    ·     a declaration, mentioned in paragraph 114B(3)(d) of schedule 1, was made.

12. The applicant therefore meets cl.186.223(1).

13. Given the decision of the Tribunal on 9 November 2020, in the application for approval made by the nominator, to set aside the department decision and approve the nomination, the Tribunal finds that the nomination has been approved and the applicant meets cl.186.223(2).

14. There is no evidence before the Tribunal that the nomination has been withdrawn and the applicant therefore meets cl.186.223(3).

15. There is no adverse information before the Tribunal and therefor the applicant meets cl.186.223(3A).

16. The position is still available to the applicant and therefore meets cl186.233(4).

17. The Tribunal decided to approve the nomination on 9 November 2020, therefore the application for the visa is made no more than 6 months after the Minister approved the nomination and the applicant satisfies cl.186.233(5)

18. Therefore, cl.186.223 is met.

19. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa for all of the visa applicants.

    DECISION

20. 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.

    Danielle Galvin
    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.