WU (Migration)

[2018] AATA 4230

WU (Migration) [2018] AATA 4230 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bin WU

CASE NUMBER:  1707246

DIBP REFERENCE(S):  BCC2016/2203286

MEMBER:Ian Berry

DATE:12 September 2018

PLACE OF DECISION:  Brisbane

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

·Cl.186.223 of Schedule 2 to the Regulations

Statement made on 12 September 2018 at 10:35am

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, 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 Immigration on 24 March 2017 to refuse to grant the visa applicant an Employer Nomination (Permanent) Subclass 186 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 29 June 2016. The delegate refused to grant the visa on the basis that he did not have an approved nomination.

3. The applicant appeared before the Tribunal on 17 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bin Sun. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. Cl.186.223 requires that for an applicant in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations.

6. The applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must have been one that was the subject of the declaration that was required to be made as part of the current visa application.  In addition, this criterion also requires that:

   a.The nomination has been approved and has not been subsequently withdrawn.

   b.There is not any ‘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.

   c.The position is still available to the applicant, and

   d.The visa application was made not more than six months after the nomination of the position was approved.

7. The visa application was refused as a consequence of the Department’s decision to refuse to approve the corresponding nomination application made by Bins Australia Pty Ltd which applied for review of the decision to refuse to approve the nomination in matter 1703422.  The Tribunal, for the reasons expressed in the decision record for that matter, has set aside the delegate’s decision to refuse to approve the nomination, and the Tribunal has approved that nomination.

8. In that decision record, the Tribunal indicated that there was not any adverse information about the nominator or any person associated with that nominator.

9. Therefore, each of the requirements of cl. 186.223 has been met.  It is appropriate that the applicant’s visa application be remitted to the Department for further consideration in accordance with a direction to that effect.

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

    DECISION

11. The Tribunal remits the application 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.

    Ian Berry
    Member