OOI (Migration)

[2018] AATA 3750

OOI (Migration) [2018] AATA 3750 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms SEOK CHENG OOI
Mr JOEL ZXIE ZXLIANG LOH
Mr SOONG PAK LOH
Mr ALEXYS ZXIE FEI LOH

CASE NUMBER:  1710369

DIBP REFERENCE(S):  BCC2016/2802860

MEMBER:Penelope Hunter

DATE:2 July 2018

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; and

Statement made on 02 July 2018 at 1:03pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Real Estate Representative – Nomination refusal decision set aside –Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.233, 187.233

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 15 May 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 24 August 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 Agreement stream.

4. 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 Real Estate Representative. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 related nomination application for the applicant’s proposed employer was refused.

6. The applicant only appeared before the Tribunal on 8 May 2018 to give evidence and present arguments. The Tribunal hearing was held at the same time as the hearing of the related application for the employer, Your Estate Agency.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements in cl.187.233.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

11. In addition, this criterion also requires that:

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

12. The applicant was nominated by Jreige Pty Ltd as trustee for the Jreige Family Trust trading as Your Estate Agency for the position of Real Estate Representative. The position is the same as in the r.5.19 nomination application and the employment is with Your Estate Agency. Your Estate Agency operates a business providing real estate sales and rental services.

13. The nomination was initially refused by the Department. On 2 July 2018, the Tribunal made a decision to set aside the refusal and substitute a decision approving the nomination application.

14. The Tribunal is satisfied that the nomination has not been withdrawn and that the position is still available to the applicant. The Tribunal is satisfied that the visa application was not made more than six months after the nomination of the position was approved. There is no evidence before the Tribunal regarding the nominator that may be considered adverse.

15. For the above reasons the Tribunal finds that the requirements of cl.187.233 is met.

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

17. The applications of the second named visa applicants are based on the claim that they are members of the family unit of a person who meets the primary criteria. As the Tribunal is remitting the application on the basis that the applicant does meet one of the primary criteria and the Department is to consider the remaining criteria for the applicant, it is appropriate for the Department to also reconsider the criteria for the second named visa applicants in full.

    DECISION

18. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.233 of Schedule 2 to the Regulations.

    Penelope Hunter
    Member