Zhang (Migration)

[2019] AATA 6317

Zhang (Migration) [2019] AATA 6317 (17 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Xiaolong Zhang
Ms Qiran Zhang
Mrs Honghua Zhu

CASE NUMBER:  1805883

HOME AFFAIRS REFERENCE(S):          BCC2017/1560717

MEMBER:Mark Bishop

DATE:17 December 2019

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 and second and third named applicants, respectively meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.233 of Schedule 2 to the Regulations; and

·cl.186.311 of Schedule 2 to the Regulations.

Statement made on 17 December 2019 at 6:27pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Chief Executive or Managing Director – subject of an approved nomination – nomination now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.233, 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 on 16 February 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 1 May 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 the Direct Entry stream, to work in the nominated position of Chief Executive or Managing Director 111111.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations.

6. The Tribunal resolved the review application on the papers.

7. The applicant was represented in relation to the review by her 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

9. The issue in the present case is whether the applicant has an approved nominating sponsor and position in which to be engaged in employment.

   Nomination of a position

10. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. 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.

12. On 17 December 2019 the Tribunal approved the nomination in respect of the applicant under r.5.19 of the Regulations made by his employer Comazor Pty Ltd. The relevant case is Matter number 1801876. Hence the applicant now meets cl.186.233(3) of Schedule 2 to the Regulations.

13. Therefore, cl.186.233 is met.

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

    DECISION

15. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN)  for reconsideration with the direction that the first named applicant meets the following criteria for a Subclass 186 (Regional Sponsored Migration Scheme) visa:

    ·cl.186.233 of Schedule 2 to the Regulations; and

16. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN)  for reconsideration with the direction that the second named applicants Ms Qiran Zhang and Mrs Honghua Zhu meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.186.311 of Schedule 2 to the Regulations;

    Mark Bishop

    Member

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.