NGUYEN (Migration)

[2019] AATA 5320

NGUYEN (Migration) [2019] AATA 5320 (8 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chinh NGUYEN

CASE NUMBER:  1715114

HOME AFFAIRS REFERENCE(S):          BCC2016/4246031

MEMBER:Keith Kendall

DATE:8 August 2019

PLACE OF DECISION:  Melbourne

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(2) of Schedule 2 to the Regulations.

Statement made on 08 August 2019 at 4:27pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – approved nomination – nomination approved upon review – decision under review remitted 

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.223(2)

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 3 July 2017 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 15 December 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Systems Administrator (ANZSCO 262113).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of subregulation 186.223(2) and is the subject of a nomination application which has been approved by the Minister.

   Nomination of a position

8. 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.

9. 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.

10. A hearing took place with respect to the related case dealing with the nomination application Case number 1712669 on 20 June 2019, where the Tribunal set aside the decision under review and substituted a decision approving the nomination.

11. The Tribunal, therefore, finds that the applicant meets the criterion in regulation cl.186.223(2).

12. In addition, having regard to the information obtained at that hearing and having carefully reviewed the Tribunal’s file and the Department’s file, the Tribunal is satisfied that:

    ·The nomination has been approved and has not been subsequently withdrawn;

    ·There is no adverse information known about the applicant or any person associated with the applicant;

    ·The nominator has provided evidence that the position of systems administrator has been occupied by the applicant on a full time basis since May 2014. The Tribunal has been provided with evidence that the applicant continues in that employment and that the written contract of employment applies for a minimum of two years and does not preclude the possibility of an extension; and

    ·The visa application was made by the applicant no more than six months following the nomination of the position, which nomination was approved by the Tribunal on 8 August 2019.

13. Therefore, the Tribunal finds 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(2) of Schedule 2 to the Regulations.

    Keith Kendall
    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.