SHI (Migration)

[2018] AATA 2043

SHI (Migration) [2018] AATA 2043 (27 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms JIN SHI
Ms MUEN XU

CASE NUMBER:  1716009

DIBP REFERENCE(S):  BCC2016/1456053

MEMBER:Sheridan Lee

DATE:27 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for 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.186.233 of Schedule 2 to the Regulations.

Statement made on 27 April 2018 at 11:27am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Sales and Marketing Manager – Subject of an approved nomination – Decision under review Remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 186.233

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 11 July 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 primary applicant Jin Shi and her included family unit member, Muen Xu, applied for the visas on 14 April 2016. 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Sales and Marketing Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because there was no approved nomination.

6. The Tribunal did not consider it necessary to conduct a hearing as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

7. The applicants were represented in relation to the review by their 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 there is an approved nomination.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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 applicant’s nominating employer, MD Solutions Australasia Decision Pty Ltd, applied to the Department of Immigration and Border Protection (now the Department of Home Affairs) for the approval of the position of Sales and Marketing Manager in respect of the applicant. On 15 May 2017, the Department refused to approve the nomination and the employer subsequently applied to the Tribunal for review of that decision.

13. On 27 April 2018, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant. As the relevant nomination has now been approved, the applicant meets the requirement in cl.186.233(3).

14. The nomination has not been subsequently withdrawn.

15. Having regard to the information on the related Tribunal file in respect of the nomination application, the Tribunal is satisfied that there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person. The Tribunal is also satisfied on the basis of the supporting documents and the evidence provided at the hearing that the position is still available to the applicant.

16. The visa application was made at the same time as the employer nomination and was therefore not made more than 6 months after the approval of the nomination.

17. Accordingly, cl.186.233 is met.

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

19. As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, their application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

20. The Tribunal remits the applications 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.186.233 of Schedule 2 to the Regulations.

    Sheridan Lee
    Member