Song (Migration)

[2020] AATA 2346

Song (Migration) [2020] AATA 2346 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bin Song
Ms Yaru Sun

CASE NUMBER:  1824727

HOME AFFAIRS REFERENCE(S):          BCC2017/4477598

MEMBER:Susan Reece Jones

DATE:24 June 2020

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(2) of Schedule 2 to the Regulations

Statement made on 24 June 2020 at 7:32pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Marketing Specialist – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 16 August 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

1. The applicants applied for the visas on 27 November 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

2. 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.

3. 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 Marketing Specialist (ANZSCO Code 225113) for Prime Value Asset Management Limited (the nominator).  

4. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the nominator failed to provide detailed evidence to demonstrate that the duties of the position correspond to the tasks of a Marketing Specialist as defined in the ANZSCO Dictionary.

5. The applicant appeared before the Tribunal on 8 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yak Yong Quek, director of the applicant.

1. The applicant was represented in relation to the review by its registered migration agent, Mr Charles Johannes of Fragomen. 

2. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the position to which the application relates is the subject of an approved nomination that identifies the visa applicant.

Nomination of a position

1. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

1. 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.

2. On 7 June 2018, the nomination lodged by Prime Value Asset Limited, being the nomination referred to in paragraph 186.233(1), was refused by a delegate for the Minister for the Department of Home Affairs.

1. On 27 June 2018, Prime Value Asset Management Limited, lodged an application for review with the Tribunal.

1. On 24 June 2020, the Tribunal set aside the Department’s decision refusing the nomination

application and substituted a new decision approving the nomination.

1. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl.186.233. As the nomination (the one referred to in paragraph 186.233(1)) has been approved the Tribunal finds that the position to which the application relates is the subject of an approved nomination that identifies the first named visa applicant.

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

DECISION

1. 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

Susan Reece Jones
Member

ATTACHMENT A

186.233(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:

(i)subparagraph 5.19(4)(h)(i); or

(ii)subregulation 5.19(2) as in force before 1 July 2012; and

(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

(b)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 person who will employ the applicant is the person who made the nomination.

(3)     The Minister has approved the nomination.

(4)     The nomination has not subsequently been withdrawn.

(4A)    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.

(5)     The position is still available to the applicant.

(6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.