Nguyen (Migration)

[2019] AATA 6322

Nguyen (Migration) [2019] AATA 6322 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Le Minh Tam Nguyen
Tat Minh Hieu Tran
Tran Ky Anh Nguyen
Tran Minh Anh Nguyen

CASE NUMBER:  1819775

HOME AFFAIRS REFERENCE:               BCC2017/2339402

MEMBER:Lilly Mojsin

DATE:19 December 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.186.233 of Schedule 2 to the Regulations

Statement made on 19 December 2019 at 9.41am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Baker – subject of an approved nomination – nomination now approved by the Tribunal – 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 Home Affairs on 4 July 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 30 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 review, the first named applicant (applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Baker ANZSCO (351111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination, that had been made by Delizie Da Forno Pty Ltd [ABN 54 100 200 560][1].

   [1] AAT 1817481

6. The Tribunal did not invite the applicants to attend a hearing as it decided it should make a favourable decision on the available evidence (s.360(2)).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 186.233, as applicable in this review, is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Temporary Residence Transition stream. The position must be the one that was the subject of the declaration made as part of the current visa application.

9. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made the nomination

   ·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.

10. The Tribunal [1817481] approved the nomination by Delizie Da Forno Pty Ltd for the occupation of Baker ANZSCO (351111).

11. Therefore the Tribunal is satisfied that the primary applicant has satisfied cl.186.223.

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 application for an Employer Nomination (Permanent) (Class EN) visa 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

    Lilly Mojsin
    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.