Nguyen (Migration)

[2018] AATA 3871

Nguyen (Migration) [2018] AATA 3871 (19 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Thi Phuong Lien Nguyen
Miss Giah Han Do

CASE NUMBER:  1616488

DIBP REFERENCE(S):  BCC2016/312915

MEMBER:Bridget Cullen

DATE:19 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

·cl.186.233 of Schedule 2 to the Regulations

Statement made on 19 September 2018 at 2:05pm

CATCHWORDS
MIGRATION –Employer Nomination (Permanent) – subclass 186 (Employer nomination scheme) – nominated position of a Management accountant – Tribunal set aside and substituted a decision to approve the nominated position – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359AA
Migration Regulations 1994 (Cth), r 5.19 Schedule 2 cls 186.233, 186.311

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 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 21 January 2016. The delegate refused to grant the visas on 21 September 2016.

2. 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.

3. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Management Accountant (ANZSCO 221112).

4. 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 was not approved.

5. The applicant appeared before the Tribunal on 17 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Murray Olsson, who gave evidence on behalf of Pacific Salt Pty Ltd. This was a combined hearing for MRT file ref 1614190, the nominator.

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

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 nomination has been refused.

   Nomination of a position

9. Clause 186.233 as applicable in this case 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 Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

   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. On 21 January 2016 an application was lodged for a residence visa under the Employer Nomination (Class EN 186) (Permanent) Direct Entry stream, in favour of the visa applicant. On 18 August 2016 the application was refused.

11. On 19 September 2018, the Tribunal set the Department's decision aside and substituted a decision approving the appointment for the position of Management Accountant. Based on evidence provided in that application, the Tribunal is satisfied the approved position is the same as the one that was the subject of the relevant r.5.19(4)(h)(i) nomination application. The Tribunal is also satisfied the position is the same as that in the visa application declaration. Therefore cl.186.233(1) is met.

12. The Tribunal relies on its findings in the nomination application to find the person who will employ the applicant is the person who was the nominator in the application for approval. Therefore cl.186.233(2) is met.

13. In light of the Tribunal's approval of the appointment under r.5.19(4), the Tribunal finds that the visa applicant now meets the requirements of cl.186.233(3).

14. The Tribunal is also satisfied on all the evidence before it that the relevant appointment has not been withdrawn and is still available to the visa applicant. Therefore cl.186.233(4) and (5) are met. The application for the visa was made on 21 January 2016, which is before the nomination was approved on 19 September 2018. As the visa application was made on a date which is no more than 6 months after the approval, cl.186.233(6) is met.

15. The Tribunal therefore finds the visa applicant satisfies the requirements specified in cl.186.233. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

16. The delegate made a decision that the second named applicant did not satisfy cl.186.311, which requires that they are a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and having made a combined application with the primary applicant.

17. The Tribunal is unable to make a direction that the secondary applicant meets this criterion, because at the time of the Tribunal's decision, the first-named applicant does not hold a Subclass 186 visa. The Tribunal refers the case of the secondary applicant to the Department to consider their application afresh.

    DECISION

18. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

    ·cl.186.233 of Schedule 2 to the Regulations

    Bridget Cullen
    Member