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Guo (Migration) [2020] AATA 5440 (30 October 2020)

Last Updated: 15 January 2021

Guo (Migration) [2020] AATA 5440 (30 October 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Ms Jianhua Guo
Mr Zhicong Xu

CASE NUMBER: 1726838

HOME AFFAIRS REFERENCE(S): BCC2016/2115170

MEMBER: Terrence Baxter

DATE: 30 October 2020

PLACE OF DECISION: Brisbane

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 criterion for a Subclass 186 (Employer Nomination Scheme) visa:

• cl.186.223(2) of Schedule 2 to the Regulations.

Statement made on 30 October 2020 at 2:59pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

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 Immigration and Border Protection on 1 November 2017 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 21 June 2016. 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 Temporary Residence Transition stream, to work in the nominated position of Massage Therapist for the Trustee for the Qu Family Trust (the nominator).
5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 21 August 2017 and that accordingly the applicant did not satisfy cl.186.223(2) and did not meet cl.186.223 as a whole as required.
6. The delegate also found that the second named applicant could not be granted a Subclass 186 visa, as he did not meet the secondary visa criterion (cl.186.311) requiring him to be a member of the family unit of a person who met the primary criteria and holds a Subclass 186 visa.
7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 1 November 2017.
8. The applicant appeared before the Tribunal by videoconference on 15 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
9. The Tribunal exercised its discretion to hold the hearing by videoconference through MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference.
10. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing by videoconference.
11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

Nomination of a position

13. 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.
14. 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.
15. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to have the position of Massage Therapist approved, with the applicant as nominee, to the Department on 21 June 2016. The nomination application was refused on 21 August 2017 and the nominator sought review of that decision with the Tribunal on 8 September 2017.
16. On 28 October 2020, 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 the Trustee of the Qu Family Trust.
17. Therefore, cl.186.223 is met in respect of the applicant.
18. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
19. The second named applicant applied on the basis that he is a member of the family unit of the applicant. His application will also be determined on remittal to the Department for reconsideration.

DECISION

20. 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 criterion for a Subclass 186 (Employer Nomination Scheme) visa:
    • cl.186.223(2) of Schedule 2 to the Regulations.

Terrence Baxter
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.