Wang (Migration)

[2018] AATA 2054

Wang (Migration) [2018] AATA 2054 (15 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hongjun Wang
Mrs Haiying Li
Mr Yuqian Wang
Miss Yuyuan Wang

CASE NUMBER:  1725551

DIBP REFERENCE(S):  BCC2016/3836505

MEMBER:Peter Emmerton

DATE:15 May 2018

PLACE OF DECISION:  Adelaide

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.186.233 of Schedule 2 to the Regulations

Statement made on 15 May 2018 at 11:35am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Sales and Marketing Manager – Nomination approved – Subject of an approved nomination – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, 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 Immigration and Border Protection on 11 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 15 November 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Sales and Marketing Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination was not approved.

6. The applicants appeared before the Tribunal on 14 May to give evidence and present arguments. The Tribunal also received oral evidence from Mr Lambert and Ms Lambert who gave evidence on behalf of Lambert Estate Wines Pty Ltd. This was a combined hearing for MRT file ref 1716610, the nominator. The Tribunal found all those presenting evidence to be credible and appeared to answer questions in an open and honest manner without obfuscation.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin 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 nomination has been refused.

11. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

12. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

    Nomination of a position

13. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

14. 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.

15. On 15 November 2016 the sponsoring employer lodged a nomination for a residence visa under the Employer Nomination (Class EN) (Permanent) Direct Entry stream, in favour of the visa applicant. On 19 July 2017 the employer’s nomination application was refused.

16. On 15 May 2018, the Tribunal set the Department’s decision aside and substituted a decision approving the appointment for the position of Sales and Marketing Manager.[1] Based on evidence provided in that application, the Tribunal is satisfied the approved position is the same as the one that was the subject of the relevant r.5.19(4)(h)(i) nomination application. The Tribunal is also satisfied the position is the same as that in the visa application declaration. Therefore cl.186.233(1) is met.

    [1] See MRT decision file ref. 1716610

17. The Tribunal relies on its findings in the nomination application to find the person who will employ the applicant is the person who was the nominator in the application for approval. Therefore cl. 186.233(2) is met. In light of the Tribunal’s approval of the appointment under r.5.19(4), the Tribunal finds that the visa applicant now meets the requirements of cl.186.233(3).

18. The Tribunal is also satisfied on all the evidence before it that the relevant appointment has not been withdrawn and is still available to the visa applicant. Therefore cl.186.233(4) and (5) are met. The application for the visa was made on 15 November 2016, which is before the nomination was approved on 14 May 2018. As the visa application was made on a date which is no more than 6 months after the approval, cl. 186.233 (6) is met.

19. The Tribunal therefore finds the visa applicant satisfies the requirements specified in cl.186.233. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. 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.186.233 of Schedule 2 to the Regulations

    Peter Emmerton
    Member