Sawaddee (Migration)

[2020] AATA 453

Sawaddee (Migration) [2020] AATA 453 (23 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Budsaneeyarat Sawaddee

CASE NUMBER:  1729261

HOME AFFAIRS REFERENCE(S):          BCC2017/1057653

MEMBER:Karen McNamara

DATE:23 January 2020

PLACE OF DECISION:  Sydney

DECISION: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 of Schedule 2 to the Regulations

Statement made on 23 January 2020 at 12:54pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition – Café or Restaurant Manager – nomination refused – no adverse information – position still available – visa application made no more than six months after nomination approved – decision substituted – nomination approved – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.13, 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 Immigration and Border Protection on 15 November 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. Miss Budsaneeyarat Sawaddee (the applicant) applied for the visa on 17 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 case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111).

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 nomination of a position in relation to the applicant had not been approved.

6. The applicant appeared before the Tribunal on 10 December 2019 to give evidence and present arguments.The Tribunal also received oral evidence from the nominator Mr Darong Sukdee who gave evidence about his business and the employment of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

7. The applicant was represented in relation to the review by her 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 of cl.186.223.

   Nomination of a position

10. 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.

11. 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.

12. The nominating employer, Kew Group Pty Ltd, applied to the Department of Immigration for approval of a nomination in relation to the position of Café or Restaurant Manager (ANZSCO 141111).

13. That nomination was refused by the Department and consequently the applicant’s visa application was refused.

14. Kew Group Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT case No. 1725879). On 23 January 2020, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19(3) of the Regulations.

15. Based on the evidence before it, the Tribunal is satisfied 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 is the one that was the subject of the declaration that was required to be made as part of the current visa application.

    ·The person who will employ the applicant in the nominated position (that is Kew Group  Pty Ltd) is the person who made the nomination.

    ·Kew Group Pty Ltd’s nomination for the position of Restaurant Manager has been approved by the Tribunal and has not been subsequently withdrawn.

    ·Having regard to the information on the related Tribunal and Department files in respect of the nomination application, there is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with the nominator.

    ·The  nominator advised at hearing the position is still available to Miss Budsaneeyarat Sawaddee; and

    ·The visa application was made on 17 March 2017 and therefore was not made more than six months after the nomination was approved.

16. On the basis of the above, the Tribunal finds that the requirements of cl.186.223 are met.

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

    DECISION

18. 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 of Schedule 2 to the Regulations.

    Karen McNamara
    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.