Wang (Migration)

[2020] AATA 1605

Wang (Migration) [2020] AATA 1605 (14 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Duoyuan Wang
Ms Fei Jin
Miss Zixuan Wang

CASE NUMBER:  1800789

HOME AFFAIRS REFERENCE(S):          BCC2017/1417955

MEMBER:Wan Shum

DATE:14 May 2020

PLACE OF DECISION:  Sydney

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 14 May 2020 at 2:28pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) –­ Direct Entry stream – Chief Executive Officer – 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 8 January 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 186 visas on 18 April 2017.

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 the Direct Entry stream, to work in the nominated position of Chief Executive Officer.

5. The applicant was nominated for this position by Jsun Care Pty Ltd, who had identified the applicant in an application for approval of a nomination lodged on the same day. That nomination was rejected on 4 December 2017.

6. As a consequence, the delegate refused to grant the visas because there was not an approved nomination in respect of the applicant, which meant he did not meet cl.186.233 of Schedule 2 to the Regulations.

7. Both the nominator and the applicants have sought review of these decisions. The applicants were represented in relation to the review by a registered migration agent.

8. On 12 May 2020, the Tribunal decided to approve the nomination made by Jsun Care Pty Ltd and, for the following reasons, has concluded that this matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the position to which this application relates was approved under the Direct Entry stream: cl.186.233(3). The position must identify the applicant and be the one that was the subject of the declaration that was required to be made as part of the current visa application: cl.186.233(1).

10. In addition, clause 186.233 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. On the visa application form, the details of the related nomination that were entered matched the Transaction Reference Number EGOCWBYMVU of the nomination made by Jsun Care Pty Ltd for the position of Chief Executive Officer. As the position of Chief Executive Officer is the position nominated in an application for approval which sought to meet the requirements of r.5.19(4)(h)(i), the requirements of cl.186.233(1)(a) are met. The applicant made the necessary declaration which meets the requirements of cl.186.233(1)(b).

12. The nomination was made on the basis that Jsun Care Pty Ltd will employ the applicant. The Tribunal approved that nomination on 12 May 2020 and it has not been withdrawn.

13. Based on the information provided in that matter, the Tribunal finds that the position is still available to the applicant. The visa application was made prior to the nomination being approved and the Tribunal finds that the application was not made more than six months after the nomination of the position was approved.

14. The Tribunal is not aware of any ‘adverse information’ (as defined) known to Immigration about the person who made the nomination or a person ‘associated with’ that person.  It does not have any information before it indicating that there have been any court/administrative/disciplinary actions or the like in relation to the nominator.

15. Given the above, the Tribunal finds that all of the requirements of cl.186.233 are met.

16. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

17. 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.

    Wan Shum
    Member