PHUMIPHAK (Migration)

[2020] AATA 3019

PHUMIPHAK (Migration) [2020] AATA 3019 (1 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dolnapat PHUMIPHAK
Saranya LAOBUTREE

CASE NUMBER:  1724614

HOME AFFAIRS REFERENCE:               BCC2017/897842

MEMBER:Lilly Mojsin

DATE:1 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 1 May 2020 at 5.00 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Financial Dealer Nec (ANZSCO  222299) – position not subject for nomination application – nomination not approved – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 5 October 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 7 March 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 (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Financial Dealer Nec (ANZSCO  222299).

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 position to which the application relates was not the subject of an application for approval of a nomination.

6. The applicant appeared before the Tribunal, by telephone, in a joint hearing with NOK FX PTY LTD[1], on 9 April 2020 to give evidence and present arguments.

   [1] AAT File 1719855

7. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant.

8. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

9. The applicant and the nominator both consented to the hearing being conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

10. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicants were represented in relation to the review by their registered migration agent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Clause 186.223 as applicable in this review is set out in full in the attachment to this decision.

12. 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.

13. 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.

14. The delegate found that the nomination lodged by NOK FX PTY LTD, being the nomination referred to in cl.186.223, was refused by a delegate of the then Minister for Immigration and Border Protection. 

15. At the joint Tribunal hearing with NOK FX PTY LTD, the Tribunal explained to the applicant that if the Tribunal affirmed the decision of the Delegate in the application of NOK FX PTY LTD then the Tribunal would affirm the decision of the applicant’s application as cl.186.233 would not be met.

16. The Tribunal [1719855] refused to approve the nomination, by NOK FX PTY LTD, for the position of Financial Dealer Nec (ANZSCO  222299) on 1 May 2020.

17. As the nomination of the position was refused, therefore, cl.186.223 is not met.

18. In regard to the 2^nd named applicant, cl. 186.311 provides:

    186.311

    The applicant:

    (a)    is 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

    (b)    made a combined application with the primary applicant.

19. As the 2^nd named applicant is not a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, therefore cl.186.311 is not met by the 2^nd named applicant.

20. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

21. Therefore, cl.186.223 is not met.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    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.