Pan (Migration)

[2020] AATA 837

Pan (Migration) [2020] AATA 837 (23 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chenglong Pan
Mrs Mei Xiao
Mr Siyu Pan

CASE NUMBER:  1724450

HOME AFFAIRS REFERENCE(S):          BCC2017/2324560

MEMBER:Mr S Norman

DATE:23 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for the 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.186.223(2) of Schedule 2 to the Regulations

Statement made on 23 March 2020 at 1:02pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Program or Project Administrator ­– subject of an approved nomination ­­– nomination application 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 Immigration and Border Protection on 28 September 2017 to refuse to grant the applicants the Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 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 case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Program or Project Administrator (ANZSCO: 511112).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations.

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

   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. On 8 August 2017, the associated nomination lodged by Helix Packaging Systems Pty Ltd, being the nomination referred to in cl.186.223(1), was refused by a delegate of the Minister. The delegate went on to find the applicant did not meet cl.186.223(2); and then refused to grant the Employer Nomination Scheme (Subclass 186) visas.

11. By decision dated 23 March 2020, the Tribunal approved the nomination application lodged by Helix Packaging Systems Pty Ltd (AAT # 1719621). Therefore, the Tribunal is satisfied the applicant has now met cl.186.223(2) of Schedule 2 of the Migration Regulations.

12. Therefore, cl.186.223(2) is met.

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

    DECISION

14. The Tribunal remits the applications for the 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.186.223(2) of Schedule 2 to the Regulations

    Mr S Norman
    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.