Xue (Migration)

[2020] AATA 5635

Xue (Migration) [2020] AATA 5635 (27 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Qiuhua Xue
Mr Ryan Yuchen Ren

CASE NUMBER:  1825306

HOME AFFAIRS REFERENCE(S):          BCC2017/2332251

MEMBER:Susan Reece Jones

DATE:27 November 2020

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 27 November 2020 at 10:02am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Sales and Marketing Manager – Training Benchmark provisions – nomination approved upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 28 August 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 30 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 Sales and Marketing Manager (ANZSCO 131112) for hotel / motel operator, Jiu-Jiu Pty Ltd (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant did not meet the required Training Benchmark provisions.

6. The applicant appeared before the Tribunal on 9 October 2020 to give evidence and present arguments. The Tribunal received oral evidence from the nominator’s director, Mr Tao Chen.

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

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese (Mandarin) and English languages.

9. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the relevant nomination has been approved as required by cl.186.223.

    Nomination of a position

12. 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.

13. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn(cl.186.223(2) and (3));

    ·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(cl.186.223(3A));

    ·the position is still available to the applicant (cl.186.223(4)); and

    ·the visa application was made no more than six months after the nomination of the position was approved (cl.186.223(5)).

14. The applicant applied for a visa on the basis of a nomination made by Jiu Jiu Pty Ltd. 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 28 August 2018.  

15. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 19 November 2020, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

16. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl.186.223(2). Therefore, given the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

17. As the Tribunal is remitting the applicant of the first name visa applicant with a finding that she meets the requirements of clause.186.223(2), the remaining criteria for the applicant should now be reconsidered. In addition, the application of the second named visa applicant should also now be reconsidered in full.

    DECISION

18. 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.

    Susan Reece 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.