Tsui (Migration)

[2019] AATA 6734

Tsui (Migration) [2019] AATA 6734 (5 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kwok Fung Tsui
Ms Hiu Tung Cheung

CASE NUMBER:  1802477

HOME AFFAIRS REFERENCE(S):          BCC2016/1509536

MEMBER:Mary Sheargold

DATE:5 December 2019

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 05 December 2019 at 11:10am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Painting Trades Worker – nomination approved upon review – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; rr 1.13, 5.19

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 15 January 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 20 April 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 Painting Trades Worker, ANZSCO 332211.

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 there was no approved nomination.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether there is an approved nomination.

   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 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.

11. The first named applicant’s nominating employer, the Trustee for Rocca Tiling Trust, applied to the Department for the approval of the position of Painting Trades Worker in respect of the first named applicant.  The Department refused to approve the nomination and the employer applied to the Tribunal for review of that decision.

12. On 29 November 2019, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the first named applicant under r.5.19(3).

13. As the relevant nomination in respect of the first named applicant has been approved, the first named applicant accordingly meets the requirement in cl.186.223(2).

14. Therefore, cl.186.223(2) 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, including in relation to the secondary applicant.

    DECISION

16. 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.

    Mary Sheargold
    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.