Zhang (Migration)

[2020] AATA 4616

Zhang (Migration) [2020] AATA 4616 (21 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Hongchun Zhang
Mr Tiandong Ma
Miss Yiru Ma
Miss Yiyin Ma
Miss Yijun Ma
Master Jake Ma

CASE NUMBER:  1814200

HOME AFFAIRS REFERENCE(S):          BCC2017/1065887

MEMBER:Andrew McLean Williams

DATE:21 August 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for reconsideration with the direction that the first-named applicant meets the following criteria for a Subclass 186 visa:

·cl.186.223 in Schedule 2 to the Regulations

Statement made on 21 August 2020 at 12:18pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Interior Decorator – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 5.19; Schedule 2, cls 186.223, 186.311

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, refusing to grant the applicants Employer Nomination (Permanent) visas, under s.65 of the Migration Act 1958 (‘the Act’). The applicants applied for the visas on 17 March 2017. The delegate refused to grant the visas on 23 April 2018.

2. The delegate made the decision refusing to grant Subclass 186 visas on the basis that, on 22 March 2018, a delegate of the Minister had refused to approve the nomination made by Cherrabah Employment Services Pty Ltd, being the nomination referred to in cl.186.223(1) in the case of the first-named applicant.  In consequence, the first-named applicant was unable to satisfy cl. 186.223, and the other applicants, who are each family members of the first-named applicant, could not meet the requirement in cl.186.311.

3. The first-named applicant appeared before the Tribunal on 23 June 2020 by telephone to give evidence and present arguments.  The applicants were represented by Mr Beau Hartnett (MARN 9474553) and Ms Kelli Schatkowski (MARN 1683627) of Ausway Migration.  Mr Hartnett also appeared before the Tribunal by telephone on 23 June 2020, and had previously submitted written submissions to the Tribunal on behalf his clients, on 27 March 2020.

4. On 20 August 2020 the Tribunal gave its reasons for decision in the application for review arising in related file 1809972, thereby finding that the application for approval of the nomination of a position by Cherrabah Management Services Pty Ltd met the requirements of r. 5.19 in Schedule 2 of the Regulations.  In consequence of that decision, the first-named applicant now meets the requirements of cl. 186.223, and the other applicants, as family members, are each able to satisfy the requirements of cl. 186.311. The Tribunal is therefore satisfied that the criterion is met and has concluded that the matter should be remitted to the Department for reconsideration.

   DECISION

5. The Tribunal remits the application for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 186 visa:

   ·cl.186.223 in Schedule 2 to the Regulations

   Andrew McLean Williams
   Member