RUAN (Migration)

[2018] AATA 2674

RUAN (Migration) [2018] AATA 2674 (18 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms SHIYA RUAN
Mr ZHENHAO LI

CASE NUMBER:  1700669

DIBP REFERENCE(S):  BCC2016/1770870

MEMBER:Kate Timbs

DATE:18 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration with the direction that Ms Ruan meets the criteria for a Subclass 186 (Employer Nomination Scheme) visa in clause 186.223 of Schedule 2 to the Regulations.

Statement made on 18 June 2018 at 5:39pm

CATCHWORDS
Migration – Employer Nomination (Permanent) – Subclass 186 Employer Nomination Scheme – Subject of an approved nomination – Nomination subsequently approved – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth),r 5.19, cls 186.223, 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 and Border Protection to refuse to grant Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958 (the Act).

2. Ms Ruan applied for the visa in the Temporary Residence Transition Stream on 18 May 2016 for herself and her spouse, Mr Zhenhao Li. On 4 January 2017, the delegate refused to grant the visas on the basis that Mr Ruan did not meet the criteria for the grant of the visa in clause 186.223 of Schedule 1 to the Migration Regulations 1994 (the Regulations).

3. Ms Ruan applied for review of that decision on 12 January 2017. On 12 January 2017, the Tribunal heard her application for review and the related application for review of her employer, Sydney Best Dim Sim Pty Ltd (the company).

   RELEVANT LAW AND ISSUE FOR THE TRIBUNAL TO DETERMINE

4. To be granted the visa, Ms Ruan and Mr Li must meet all relevant criteria in part 186 of Schedule 1 to the Regulations.

5. Ms Ruan is the primary applicant and to be granted the visa, among other things, she must satisfy the requirements of clause 186.223 discussed below.

6. Mr Li is a secondary applicant for the visa and, among other things, he must satisfy the criterion in clause 186.311 that he is the member of the family unit of a person who holds a Subclass 186 visa on the basis that they satisfied the relevant primary criteria.

7. To deal with the application for review, the Tribunal considered whether Ms Ruan meets the clause 186.223 requirements.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. Clause 186.223 requires that the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations. The applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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, it 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  or that 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 4 May 2016, the company applied for approval of a nomination under regulation 5.19. It identified Ms Ruan as the relevant subclass 457 visa holder and made relevant declarations in relation to the position. However, the delegate refused to approve the nomination and found Ms Ruan did not satisfy clause 186.223 for that reason.

11. On 18 June 2016, the Tribunal (as presently constituted) set aside the decision to refuse to approve the company’s nomination and substituted the decision to approve it. In that case, Ms Ruan satisfies the criterion that the nomination has been approved. The Tribunal is satisfied the company has not withdrawn the nomination and, in the course of approving the nomination, it found there was no relevant adverse information known to migration. It also found that Ms Ruan is a valued employee of the company and that the position is still available to her. Finally, she applied for the visa before the Tribunal approved the nomination.

12. Having made those findings, the Tribunal finds that Ms Ruan satisfies the criteria in clause 186.223. It will set aside the decision to refuse to grant the visas for that reason and send the matter back to the Department. Another delegate will then consider whether she meets all other relevant primary criteria for the grant of a visa.

13. Mr Li will satisfy clause 186.311 if the Department grants Ms Ruan a visa on that basis and it will consider whether he meets all other relevant secondary criteria for the grant of a visa.

    DECISION

    The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration with the direction that Ms Ruan meets the criteria for a Subclass 186 (Employer Nomination Scheme) visa in clause 186.223 of Schedule 2 to the Regulations.

    Kate Timbs
    Member