Tran (Migration)

[2023] AATA 3689

Tran (Migration) [2023] AATA 3689 (1 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanh Duc Tran

REPRESENTATIVE:  Mrs Parneet Lidher (MARN: 1808102)

CASE NUMBER:  1934019

HOME AFFAIRS REFERENCE(S):          BCC2018/839404

MEMBER:Sheridan Aster

DATE:1 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the applicant meets the requirements in cl.186.223 of Schedule 2 to the Migration Regulations 1994

Statement made on 01 November 2023 at 1:28pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Hair or Beauty Salon Manager – nomination approved upon review – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 21 November 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 21 February 2018. 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 (Cth) (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 the Temporary Residence Transition stream, to work in the nominated position of Hair or Beauty Salon Manager.

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 application lodged by the applicant’s employer was refused by the Department.

6. The applicant appeared before the Tribunal by video on 6 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, Mrs Thi Van Chi Trung, Director of Unique Nails & Beauty.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. 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.

10. 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 reg 1.13A and reg 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.

11. The applicant’s nominating employer, Unique Nails & Beauty, applied to the Department of Home Affairs for the approval of the position of Hair or Beauty Salon Manager in respect of the applicant. The Department refused to approve the nomination and the employer subsequently applied to the Tribunal for review of that decision.

12. On 1 November 2023, 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 186.223(2).

13. The nomination has not been subsequently withdrawn.

14. 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.

15. The Tribunal is also satisfied on the basis of the supporting documents and the evidence provided by the employer at the hearing in respect of the nomination 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. Therefore, cl 186.223 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.

    DECISION

19. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the applicant meets the requirements in cl.186.223 of Schedule 2 to the Migration Regulations 1994.

    Sheridan Aster
    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.