TRAN (Migration)

[2018] AATA 2648

TRAN (Migration) [2018] AATA 2648 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Ngoc Lan TRAN
Mr Huu Hiep NGUYEN
Miss Tran Hong Nguyen NGUYEN

CASE NUMBER:  1727112

DIBP REFERENCE(S):  BCC2017/2349051

MEMBER:Stavros Georgiadis

DATE:21 June 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 21 June 2018 at 5:15pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition Scheme – Approval of a nominated position – Vegetable grower – Nomination approval – Tribunal affirmed review of the employer’s nomination – Secondary applicants – Members of the same family unit – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65, 359A
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 Immigration and Border Protection on 16 October 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 applicants applied for the visas on 1 July 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Vegetable Grower (ANZSCO 121221). This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations as the application for a nominated occupation in relation to the applicant had not been approved.

6. The applicants appeared before the Tribunal on 20 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominating employer’s General Manager, Ms Inemoa Pepper and its Director, Ms Lam Phan in the related matter regarding the nomination of the occupation. The related matters were heard together.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

8. The applicants were represented in relation to the review by their registered migration agent.

   For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicants meet the criteria for the grant of a Subclass 186 visa which are set out in Schedule 2 to the Migration Regulations 1994.

   Nomination of a position

10. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, 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 (that is, a Temporary Residence Transition nomination). For those purposes, 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.

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 Tribunal examined the visa application on the Department file and notes that the required declaration has been made in relation to the position nominated by the employer sponsor. The Tribunal is also satisfied on the documentary and oral evidence before it, that the position to which the application relates is the position nominated by H&L Hydroponics Pty Ltd as Trustee for H&L Hydroponics Trading Trust in an application for approval that seeks to meet the requirements of sub-paragraph 5.19(3), and is in relation to which the applicant has been identified in the nomination as the relevant Subclass 457 visa holder for the position under cl.186.223(1).

13. On 21 June 2918 the Tribunal made a decision to affirm the decision under review in respect of the nomination under r.5.19 in the related AAT case-file number 1722960. At the hearing the Tribunal put to the applicant, in accordance with the procedure under s.359AA of the Act, that without an approved nomination she would not meet necessary criteria to satisfy cl.186.223 (specifically cl.187.223(2)) for the grant of the visa and that the application would, on that basis, be unsuccessful in respect of all applicants. The Tribunal invited the applicant to comment on, or respond to, the information that where a decision had been made by the Tribunal to refuse the nomination, this would be the reason or part of the reason, for affirming the decision that is under review. The Tribunal also advised the applicant that she could seek additional time to comment on, or respond to, the information and that the Tribunal would consider adjourning the review if it considered the applicant reasonably needed additional time to comment on, or respond to, the information.

14. The applicant did not require additional time to comment or respond. The applicant conveyed to the Tribunal that the applicants understand and accept that in circumstances where there is no nomination approved, it would not be open for the visa applications to be successful as approval of the nomination is one of the requirements for the grant of the 186 visas.

15. Having considered the available evidence before it discussed, the Tribunal is satisfied that the position of Vegetable Grower (ANZSCO 121221) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.186.223(2). The Tribunal finds that the nomination of the position to which the application relates is not approved.

16. As cl.186.223(2) is not satisfied, cl.186.223 is therefore, not met.

17. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed in respect of all applicants as members of the same family unit as the primary applicant.

18. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Stavros Georgiadis
    Member