Truong (Migration)

[2020] AATA 4144

Truong (Migration) [2020] AATA 4144 (28 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Thanh Nhan Truong
Ms Le Tran Chau Tran
Master Thanh Nghi Truong

CASE NUMBER:  1823651

HOME AFFAIRS REFERENCE(S):          BCC2017/3811524

MEMBER:Antonio Dronjic

DATE:28 September 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. 223 (2) of Schedule 2 to the Regulations.

Statement made on 28 September 2020 at 4:01pm

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 14 August 2018 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 17 October 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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Marketing Specialist (ANZSCO 252113).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination application lodged by the applicant’s employer, Lyndon Peak Pty Ltd, trading as Access Mercantile Agency, was refused by the Department on 8 June 2018. The Tribunal note that the primary decision record mistakenly refers to Wuzhou Australia Pty Ltd as the nominating business. In their email of 28 September 2020, the Department confirmed that:

   It appears that incorrect content was included in the decision record in error, namely the name of the nominator, the date that the nomination was refused, and the date the s57 letter was sent to the visa applicant regarding the refusal of the nomination.

   The name of the nominator should have been LYNDON PEAK PTY LTD, the date of nomination refusal 8/6/2018 with s57 letter regarding nomination refusal sent to the visa applicant the same day – 8 June 2018.

6. The applicants applied to this Tribunal for review of the primary decision on 15 August 2018 and were represented in relation to the review by their registered migration agent.

7. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. 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.

9. 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.

10. The Department's records indicate that the applicant's employer, Lyndon Peak Pty Ltd, made an application to have the position of Marketing Specialist approved, with the first named applicant as the nominee, with the Department on 17 October 2017.

11. This nomination application was refused on 8 June 2018 and the employer sought review of that decision with the Tribunal on 12 June 2018. On 17 September 2020, the Tribunal (as presently constituted) set aside the Department's decision to refuse to approve the nomination and substituted a decision to approve the nomination by Lyndon Peak Pty Ltd (see AAT/MRD decision 1817161 of 17 September 2020).

12. Therefore, the Tribunal finds that cl.186.223 (2) is met by the first named applicant.

13. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the second and third named applicants applied on the basis that they are members of the family unit of the primary applicant, their applications will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration.

    DECISION

14. 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.186.223 (2) of Schedule 2 to the Regulations.

    Antonio Dronjic
    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.