Tran (Migration)

[2018] AATA 4741

Tran (Migration) [2018] AATA 4741 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Thanh Van Tran
Mrs Thi Thanh Nhanh Tran
Master Dinh Huy Tran

CASE NUMBER:  1701202

HOME AFFAIRS REFERENCE(S):           BCC2016/980284

MEMBER:Amanda Mendes Da Costa

DATE:6 December 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.186.223 of Schedule 2 to the Regulations.

The Tribunal finds that the second and third named applicants meet the criteria for a Subclass 186 visa as members of the family unit of a person who has satisfied the primary criteria.

Statement made on 06 December 2018 at 9:52am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Air Conditioning and Refrigeration Mechanic – 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, r 5.19

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

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 (the Minister) on 11 January 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 8 March 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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Air Conditioning and Refrigeration Mechanic ANZSCO Code 342111.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because on 21 November 2016, the nomination lodged by the applicant’s prospective employer, Roo and Oz Sheetmetal Pty Ltd (the company) for the applicant, being a nomination referred to in cl.186.223(1) was refused by a delegate of the Minister.

6. The applicants appeared before the Tribunal on 21 November 2018 to give evidence and present arguments. The hearing was held as a combined hearing with the related nomination refusal case of the company.  Mrs Pham, a director of the company and Mr Phong Thaddeus Nguyen gave evidence during the hearing.

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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant has an approved nomination pursuant to cl.186.223 of Schedule 2 to the Regulations.

    Nomination of a position

11. 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.

12. 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.

13. On 5 December 2018 the Tribunal made a decision, approving the nomination of the applicant’s position with the company under the Temporary Residence Transition stream, pursuant to r.5.19(3) of the Regulations.

14. Accordingly, as the applicant has an approved nomination, cl.186.223 is met.

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

16. In relation to the second and third named applicants, the Tribunal finds that as the first named applicant satisfies the criteria for the grant of a Subclass 186 visa, the second and third named applicants each meet the criteria for a Subclass 186 visa as a member of the family unit of a person who has satisfied the primary criteria.

    DECISION

17. The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with a direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.223 of Schedule 2 to the Regulations

    Amanda Mendes Da Costa
    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.