Zhao (Migration)

[2019] AATA 5064

Zhao (Migration) [2019] AATA 5064 (5 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Qi Zhao
Mr Hui Liu

CASE NUMBER:  1811906

HOME AFFAIRS REFERENCE(S):           BCC2017/934168

MEMBER:Mr S Norman

DATE:5 November 2019

PLACE OF DECISION:  Sydney

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 05 November 2019 at 11:48am

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

LEGISLATION
Migration Act 1958 (Cth), s 65
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 19 April 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 9 March 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). 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.

3. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Massage Therapist.

4. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations.

5. The applicants (Mrs Wi Zhao & Mr Hui Liu) appeared before the Tribunal on 4 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the Director for the nominator (Mr Junfa Mao). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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.

8. 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); 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.

9. The delegate noted the application for the visa was lodged by the first named applicant (the applicant) on 9 March 2017 in relation to an appointment of Massage Therapist (ANZSCO: 411611). The applicant claimed to satisfy the criteria for the Subclass 186 visa under the Temporary Residence Transition Stream.

10. The delegate noted that on 9 March 2018, the nomination lodged by Super Health Clinic P/L (the nominator), being the nomination referred to in cl..186.223(1) had been refused by delegate of the Minister. By letter of the same date, issued to the authorised recipient, the applicant was provided with an opportunity to comment and given 28 days within which to respond in writing. However, as at the date of the delegate’s decision, no response had been received. Therefore the delegate was not satisfied that the applicant met cl.186.223(2); or cl.186.223.

11. Next, the delegate assessed the application under the Direct Entry Stream. However, under cl.186.233(1)(a), the position to which a visa application relates must be nominated and approved under r.5.19(4)(h)(i) or r.5.19(2) is enforced before 1 July 2012. Since the correlating nomination only sought to meet the requirements of r.5.19(3), the applicant was found not to have met cl.186.233. Next, the delegate assessed the application under the Agreement Stream. However, as the correlating position was not nominated by an employer in accordance with the Labour agreement, the applicant did not meet the requirements of cl.186.242. Next, the delegate considered cl.186.311 (member of a family unit). However, as none of the applicants met the primary criteria for the grant of the visa, none could qualify for the visa as a member of the family unit of someone who had.

12. The delegate then refused to grant the applicant the Employer Nomination Scheme (Subclass 186) visa.

13. On 5 November 2019, the related nomination approval application was approved (by Tribunal decision - AAT # 1809066), and therefore the applicant satisfies this criteria for the visa. For the reasons set out in AAT # 1809066, the Tribunal is satisfied the person who will employ the applicant is the person who made the nomination; that the nomination has been approved and has not been subsequently withdrawn; that 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); that the position is still available to the visa applicant (and he has worked in the position since January 2014/2015); and that the visa application was made no more than six months after the nomination of the position was approved. However, the Tribunal proposes to only find that cl.186.223(2) is met.

14. Given this finding, 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 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.186.223(2) of Schedule 2 to the Regulations

    Mr S Norman
    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.