Zhang (Migration)

[2017] AATA 2116

Zhang (Migration) [2017] AATA 2116 (18 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hui Zhang
Ms Xiaoxing Wang
Master Jialu Zhang

CASE NUMBER:  1613779

DIBP REFERENCE(S):  BCC2016/223909

MEMBER:Antonio Dronjic

DATE:18 October 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.186.234(2)(a) of Schedule 2 to the Regulations.

Statement made on 18 October 2017 at 12:21pm

CATCHWORDS

Migration – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Skills assessment by relevant assessing authority – Skills found suitable for occupation

LEGISLATION

Migration Act 1958, ss 65, 360(2)(a)

Migration Regulations 1994, Schedule 2, cl 186.234(2)(a),IMMI13/064

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 19 August 2016 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 15 January 2016. 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 a Geophysicist (ANZSCO 234412). 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.186.234(2)(a) of Schedule 2 to the Regulations because he had not provided evidence that, at the time of application, his skills had been assessed as suitable by a relevant assessing authority.

6. With the review application, the first named applicant submitted Skills Assessment outcome letter from VETASSESS dated 29 October 2015 as evidence that, prior to lodgement of the visa applications on 15 January 2016; the applicant has obtained the positive skills assessment from the relevant assessing authority.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Skills assessment

8. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

9. For this criterion, the relevant class of exempt persons has been specified in IMMI 12/060. The first named applicant did not claim that he is within the class of exempt persons.

10. For the skills assessment, the relevant assessing authorities for each occupation have been specified in IMMI 13/064. For visa applications made on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

11. The applicant provided the tribunal with a successful skills assessment in the occupation of Geophysicist (ANZSCO 234412) issued by VETASSESS dated 29 October 2015. The tribunal is therefore satisfied that an assessing authority specified in IMMI 13/064 has assessed the applicant's skills as suitable for the occupation prior to lodgement of visa applications.

12. The tribunal is further satisfied that the assessment was not for subclass 485 visas; that he date of the assessment is not more than three years before the date of visa application and that a period of validity specified in the skills assessment letter is not less than 3 years after the date of assessment. The first named applicant therefore meets sub-subparagraph 186.234(2)(a).

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

    DECISION

14. 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.186.234(2)(a) of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member