Yang (Migration)

[2017] AATA 865

Yang (Migration) [2017] AATA 865 (12 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sulan Yang
Mr Quanming Zeng
Miss Yanghui Zeng

CASE NUMBER:  1513640

DIBP REFERENCE(S):  BCC2015/995 BCC2015/995467

MEMBER:Brook Hely

DATE:12 May 2017

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.186.233 of Schedule 2 to the Regulations.

Statement made on 12 May 2017 at 3:52pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Nomination – Corporate General Manager – Nomination approved upon review

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.233, r 5.19, 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 Immigration on 21 September 2015 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 to the Department of Immigration for the visas on 31 March 2015. 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 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 Corporate General Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the relevant nomination relating to this appointment had not been approved.

6. The applicants appeared before the Tribunal on 12 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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.

10. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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 31 March 2015, the applicant’s employer, Aus Fertilizer Pty Ltd (‘Aus Fertilizer’)) applied to the Department for approval of a nomination in relation to the position of Corporate General Manager. Also on 31 March 2015, the applicant lodged the present visa application with the Department on the basis of having been nominated by Aus Fertilizer for this position.

12. On 20 August 2015, the Department refused the nomination application by Aus Fertilizer. On 9 September 2015, Aus Fertilizer applied to the Tribunal for review of that decision (Case Number 1512365). On 12 May 2017, the Tribunal held a hearing in relation to the approval of the nomination and, on that same day, the Tribunal set aside the delegate’s decision and substituted a new decision approving the nomination. The Tribunal is satisfied from this evidence that the relevant nomination has been approved and has not been subsequently withdrawn.

13. For the reasons set out in the Tribunal’s decision approving the nomination, the Tribunal is also satisfied that there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person. The Tribunal is also satisfied from the evidence given in the hearing relating to the approval of the nomination that the relevant position is still available to the applicant and that the person who will employ the applicant is the person who made the nomination.

14. The application for the visa was made on a date before the nomination was approved. It follows that the visa application was made on a date which is not more than 6 months after the approval.

15. Therefore, overall cl.186.233 is met.

16. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa for each of the visa applicants.

    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.

    Brook Hely
    Member