Zhao (Migration)

[2021] AATA 5356

Zhao (Migration) [2021] AATA 5356 (22 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Qingyang Zhao
Mr Guang Yang
Miss Melissa Siyu Yang

REPRESENTATIVE:  Ms Sarah Loch-Wilkinson (MARN: 0850888)

CASE NUMBER:  1901104

HOME AFFAIRS REFERENCE(S):          BCC2018/2936227

MEMBER:Alison Mercer

DATE:22 December 2021

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 of Schedule 2 to the Regulations.

Statement made on 22 December 2021 at 10:55am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Registered Nurse (Aged Care) – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360

Migration Regulations 1994 (Cth), Schedule 2, cl. 186.223

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 10 January 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 5 August 2018. 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 (Cth) (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 Temporary Residence Transition stream, to work in the nominated position of Registered Nurse (Aged Care) (ANZSCO 254412).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations, which required (amongst other things) that she was the subject of an approved nomination by her Australian employer. The delegate found that the nomination of the applicant by her employer, Greenwood Manors Pty Ltd, had been refused by the Department on 12 December 2018. The delegate found that the applicant had not claimed to meet the requirements of any of the alternative streams and thus could not be granted a subclass 186 visa. The delegate also refused to grant subclass 186 visas to the second and third named applicants (the applicant’s spouse and child) as they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 17 January 2019. It was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Zhaojiang Lu, as their representative and authorised recipient for correspondence. Subsequently, they appointed a new agent, Ms Sarah Loch-Wilkinson, to these roles.

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 applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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. 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.

10. In addition, this criterion also requires that:

    ·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 reg 1.13A and reg 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. The Department's records indicate that the applicant's employer, Greenwood Manors Pty Ltd, made an application to have the position of Registered Nurse (Aged Care) approved, with the applicant as the nominee, with the Department on 3 August 2018.

12. This nomination application was refused on 12 December 2018 and the employer sought review of that decision with the Tribunal on 16 December 2018. On 22 December 2021, the Tribunal (as presently constituted) set aside the Department's decision to refuse to approve the nomination and substituted a decision to approve the nomination by Greenwood Manors Pty Ltd (see AAT/MRD decision 1837137 of 22 December 2021).

13. Accordingly, the Tribunal is satisfied that:

    ·the person (in this case, business) that will employ the applicant is Greenwood Manors Pty Ltd, who made the nomination application;

    ·that nomination has been approved and has not been withdrawn;

    ·from a review of the Department's Integrated Client Services Environment electronic records, and based on findings made in the Tribunal’s decision in 18137137 for the nomination review, 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);

    ·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.

14. Therefore, the Tribunal finds that cl.186.223 is met by the applicant.

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

16. As the second and third named applicants applied on the basis that they are members of the family unit of the applicant, their applications will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration

    DECISION

17. 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.

    Alison Mercer
    Member

    
    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.