Wang (Migration)

[2021] AATA 1410

Wang (Migration) [2021] AATA 1410 (9 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mingguang Wang

CASE NUMBER:  1816690

HOME AFFAIRS REFERENCE:               BCC2016/2686950

MEMBER:Rosa Gagliardi

DATE:9 April 2021

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.223 of Schedule 2 to the Regulations.

Statement made on 9 April 2021 at 1:11pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 4 June 2018 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 14 August 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 (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 Cook (ANZSCO 351411).

5. The delegate refused to grant the visa because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations the Minister had not approved the nomination.

6. The applicant (nominee) appeared before the Tribunal on 21 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the Director of the nominating business, FLAMING MT, PTY LTD, Mr Yuan Hon.

7. The applicant was represented in relation to the review by his registered migration agent.

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. On 26 April 2018, the nomination lodged by FLAMING MT, PTY LTD, being the nomination referred to in paragraph 186.223(1), was refused by a delegate for the Minister for the Department of Home Affairs.  This was because the nominator did not meet the requirements of r.5.19(3) or r.5.19(4) at the time of primary decision.  FLAMING MT, PTY LTD lodged an application for review with the Tribunal.

12. On 9 April 2021 the Tribunal set aside the Department’s decision refusing the nomination application and substituted a new decision approving the nomination.  This is because the Tribunal had at hand additional material not previously provided.

13. As the nomination (the one referred to in paragraph 186.223(1)) has been approved the Tribunal finds that the position to which the application relates is the subject of an approved nomination.

14. The Tribunal is also satisfied from the available evidence before it that the applicant is identified in the nomination as a Subclass 457 visa holder.  Therefore, from all the above, cl.186.223(1) is met. 

15. The oral evidence before the Tribunal from the applicant and the nominator is that the position has not subsequently been withdrawn and is still available to the applicant, and the Tribunal so finds for the purposes of cl.186.223(3) and cl.186.223(4).

16. On 9 April 2021 the Tribunal decided to set aside the nomination refusal decision under review and substituted a decision approving the nomination in the related AAT Decision: 1813237, for the reasons set out in the Statement of Decision and Reasons.

17. As the nomination is now approved, the applicant satisfies cl.186.223(2).

18. Given the nomination was approved on 9 April 2021, the Tribunal is satisfied that the application for the visa of 14 August 2016 was made not more than six months after the nomination of the position was approved and the applicant thus satisfies cl.186.223(5).

19. The Tribunal considered whether for the purposes of cl.186.223(3A), there is any adverse information known by the Department, 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 if it is reasonable to disregard any such information.

20. The nominating employer provided written and oral submissions to the Tribunal advising that there is no such adverse information known and that the employer has complied with all laws of the Commonwealth and the State. The submission is that in this regard, r.5.19(3)(g)(i) is met.  The Tribunal has found, as set out in the decision of even date in the related AAT Decision: 1813237, that no such adverse information is known.  It remains that there is nothing before the Tribunal to suggest that there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator (as defined in r.1.13A and r.1.13B). The applicant is not aware of any such adverse information.  In the absence of knowledge of adverse information by the Department, the Tribunal accepts that the applicant meets this criterion.

21. Therefore, cl 186.223 is met.

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

    DECISION

23. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.223 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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.