Nguyen (Migration)

[2020] AATA 4113

Nguyen (Migration) [2020] AATA 4113 (11 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hoang An Nguyen

CASE NUMBER:  1916050

HOME AFFAIRS REFERENCE(S):          BCC2018/1277112

MEMBER:Alan McMurran

DATE:11 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the 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 11 September 2020 at 5:01pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – graphic designer –tribunal set aside nomination decision–nomination approved –subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 20 June 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 1 June 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 March 2018. 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 applicant was seeking a visa for the nominated occupation of graphic designer ANZSCO 232411. The guide describes the occupation which requires the applicant to plan, design, develop and prepare information for publication and reproduction using text, symbols, pictures, colours and layout to achieve commercial and communication needs with particular emphasis on tailoring the message for the intended audience.

5. The delegate refused to grant the visa because the applicant did not meet cl.186. 223 (2) of Schedule 2 to the Regulations because the applicant was not the subject of a nomination which the Minister has approved.

6. The applicant appeared before the Tribunal on Friday, 11 September 2020 to give evidence and present arguments. The Tribunal received submissions from the applicant’s registered migration agent who also appeared.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets regulations 186.223.

   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. On 11 September 2020, in a combined hearing with the review by the Tribunal of the nomination application by Vietface-TV Australia Pty Ltd, the Tribunal found it was satisfied that the nomination should be approved. Accordingly, the nomination application has been remitted to the Department.

12. The Tribunal further finds on the available information that the nomination is not the subject of any adverse information known to Immigration or the Tribunal within the meaning of regulation 1.13A or 1.13B, that the position is still available to the applicant who is working in the role and the visa application was made no more than six months from the nomination approval.

13. Therefore, cl.186.223 is met.

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

    DECISION

15. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.223 of Schedule 2 to the Regulations;

    Alan McMurran
    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.