Wang (Migration)

[2019] AATA 4520

Wang (Migration) [2019] AATA 4520 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Guocan Wang
Ms Dan Liu
Ms Yiqi Wang

CASE NUMBER:  1820278

HOME AFFAIRS REFERENCE(S):           BCC2017/2250328

MEMBER:Susan Reece Jones

DATE:4 October 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 04 October 2019 at 12:38pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – no 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 5 July 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 26 June 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 Temporary Residence Transition stream, to work in the nominated position of Motor Mechanic with TOTAL AUTOMOTIVE SERVICE COMPANY in Melbourne, Victoria, Australia.

5.The delegate refused to grant the visas because the applicant did not meet cl.186.223(3) of Schedule 2 to the Regulations because the associated nomination of the applicant’s employer was not approved.

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

7.In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

Other criteria

10.Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. It requires that the position to which the applicant relates is subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be one that was the subject of the declaration that was required to be made as part of this current visa application. In addition this criterion also requires that the nomination has been approved: cl. 186.223(2).

11.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).

·     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.

1. The applicant applied for a visa on the basis of a nomination made by, TOTAL AUTOMOTIVE SERVICE COMPANY (the nominator). The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which he made the relevant declaration at the time of the visa application, was refused by the Department on 10 May 2018.

2. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 4 October 2019, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination, under r.5.19(3).

3. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl. 186.223(2).

4. The application of the second and third named visa applicants are based on being a member of  the family unit of the first named visa applicant who meets the primary criteria.

5. As the Tribunal is remitting the application of the first named visa applicant with a finding that he meets the requirements of cl.186.223, the remaining criteria for his application should now be reconsidered. In addition, the application of the second named visa applicant, and third named visa applicant as members of the family unit of the first named visa applicant, should now also be reconsidered in full.

DECISION

1. 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.

S. Jones
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.