WANG (Migration)

[2020] AATA 3232

WANG (Migration) [2020] AATA 3232 (5 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr LEI WANG
Ms TING YU

CASE NUMBER:  1730608

HOME AFFAIRS REFERENCE(S):          BCC2017/1683749

MEMBER:Alan McMurran

DATE:5 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.186.223 of Schedule 2 to the Regulations;

Secondary Applicant

The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visa for the second named applicant, as a member of the family unit of the primary applicant, for reconsideration.

Statement made on 05 May 2020 at 12:49pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Butcher or Smallgoods Maker – tribunal approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 186.223, rr 1.13A, 1.13B

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 5 December 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 November 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 11 May 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 the Temporary Residence Transition stream, to work in the nominated position of Butcher or Smallgoods Maker. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations, as the Minister had not approved the nomination for the position by the sponsor, Zhong Shen.[1]

   [1] T case file 1726394

5. Based on the information now before the Tribunal, the Tribunal can proceed to a decision favourable to the applicants, and without a hearing.[2]The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   [2] S 360(2) of the Act

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the Minister has approved the nomination.[3]

   [3] r.186.233 (2)

7. The Tribunal has had regard to the Department’s file for the visa applicants, the Department’s file for the nomination[4], and the Tribunal’s file on the review of the nomination.[5]

   [4] BCC 2017/1683682

   [5] T case file 1726394

   Nomination of a position

8. 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.

9. 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.

   Findings

10. On the information available to the Tribunal, the Tribunal is satisfied and finds that the nomination application by Zhong Shen has not been withdrawn. On 5 May 2020, the Tribunal decided on the nomination review application to approve the nomination.

11. The Tribunal finds it is not aware of any adverse information known to Immigration (or to the Tribunal) about the nominator (or the nominee) or any person associated with those persons.

12. The Tribunal finds the position of Butcher or Smallgoods Maker is still available to the applicant with the nominator. The Tribunal is further satisfied the visa application by the primary review applicant was made no more than 6 months following the approval of the nomination for the position.

13. Therefore, cl.186.223 is met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    Secondary Applicant

14. On the available information, the Tribunal is satisfied that the second named applicant is “a member of the family unit” of the primary review applicant[6].

    [6] cl. 186.311

15. As such, the appropriate course is to remit the application by the second named applicant for further consideration of the criteria for the visa.

    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 of Schedule 2 to the Regulations;

    Secondary Applicant

    The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visa for the second named applicant, as a member of the family unit of the primary applicant, for reconsideration.

    Alan McMurran
    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.