Qiu (Migration)

[2020] AATA 4447

Qiu (Migration) [2020] AATA 4447 (16 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yaqin Qiu

CASE NUMBER:  1833769

HOME AFFAIRS REFERENCE(S):          BCC2018/482917

MEMBER:Susan Trotter

DATE:16 October 2020

PLACE OF DECISION:  Brisbane

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

·cl.186.223(2) of Schedule 2 to the Regulations

Statement made on 16 October 2020 at 5:23pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; 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 Home Affairs to refuse to grant the applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa on 16 November 2018.

2. The applicant applied for the visa on 29 January 2018. 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 Café or Restaurant Manager for Golden Lee International Pty Ltd (the nominator) for its café, which was trading as SW1 Tini Bar in South Brisbane, Queensland at the time of application and is now trading as SW1 Kitchen at the same location.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations as required because the nomination by the nominator had not been approved.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 17 November 2018.

7. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant’s favour on the basis of the material before it without proceeding with a hearing.

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 there is an approved nomination.

   Nomination of a position

10. Clause 186.223(2) is one of the essential criteria that must be met. It requires that the position to which the application relates be 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.

11. Records of the Department of Home Affairs indicate that the nominator made an application to have the position of Café or Restaurant Manager approved, with the applicant named as the nominee, with the Department on 29 January 2018. The nomination application was refused on 12 October 2018 and the nominator applied to the Tribunal seeking review of the decision on 24 October 2018.

12. On 16 October 2020, the Tribunal set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by the nominator.

    Conclusion

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

14. Consistent with paragraph 8.2 of the Tribunal’s President’s Direction - Conducting Migration and Refugee Reviews (1 August 2018), the Tribunal has restricted its consideration to the issue the subject of the delegate’s adverse decision.

    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.

    Susan Trotter
    Member