Zhao (Migration)

[2021] AATA 197

Zhao (Migration) [2021] AATA 197 (25 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tianyu Zhao
Mrs Xingjia Cheng
Ms Xingtong Zhao
Mr Yicheng Zhao

CASE NUMBER:  1819312

HOME AFFAIRS REFERENCE(S):          BCC2017/2114417

MEMBER:Phoebe Dunn

DATE:25 January 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(2) of Schedule 2 to the Regulations.

Statement made on 25 January 2021 at 2:53pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – subject of approved nomination – refusal of related position nomination application set aside on review – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1995 (Cth), Schedule 2, cls 186.223(2), 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 June 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 15 June 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 Temporary Residence Transition stream, to work in the nominated position of Marketing Coordinator (ANZSCO 225113).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the related nomination application by Sunshine Investments Australia Pty Ltd ATF Sunshine Investments Australia Hybrid Unit Trust (the nominator), being the nomination referred to in cl.186.223(1) (the nomination), was refused by a delegate of the Minister on 26 April 2018 and as such there was no approved nomination.

6. 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 s.360(2)(a) of the Act.

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

9. The issue in the present case is whether the related nomination application has been approved.

   Nomination of a position

10. 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.

11. 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 r.1.13A and r.1.13B of the Regulations); 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. The applicant applied for the Subclass 186 visa on the basis of the nomination application by the nominator for the nominated position of Marketing Coordinator, being the nomination referred to in cl.186.223(1) and in respect of which the applicant made his visa declaration.  The applicant’s visa application was refused because the related nomination application was refused and as such the applicant did not meet the requirements of cl.186.223(2). 

13. The nominator applied for review of the decision to refuse the nomination. On 22 January 2021, the Tribunal set aside the delegate’s decision to refuse the nomination and substituted a decision approving the nomination.

14. As the related nomination has been approved, the applicant meets cl.186.223(2).  As such, the Tribunal finds that cl.186.223(2) is met.

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

16. The delegate made a decision that the second, third and fourth named applicants did not satisfy cl.186.311, which requires that they are members of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and having made a combined application with the primary applicant.

17. The Tribunal is unable to make a direction that the secondary applicants meet this criterion, because at the time of the Tribunal’s decision, the first named applicant does not hold a Subclass 186 visa. The Tribunal refers the cases of the secondary applicants to the Department to consider the application afresh.

    DECISION

18. 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(2) of Schedule 2 to the Regulations.

    Phoebe Dunn
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; 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.