1414633 (Migration)

[2015] AATA 3475

1414633 (Migration) [2015] AATA 3475 (8 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Seong Min Lee
Mrs Heejin Kim
Miss Haeum Lee
Mr Reuel Lee

CASE NUMBER:  1414633

DIBP REFERENCE(S):  BCC2014/743968

MEMBER:Jennifer Ciantar

DATE:8 October 2015

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.186.233 of Schedule 2 to the Regulations.

Statement made on 08 October 2015 at 1:40pm

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 on 8 August 2014 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 to the Department of Immigration for the visas on 14 March 2014. 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 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 Minister of Religion. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination lodged by Colour City Family Church Inc. for the position of Minister of Religion was refused on 26 June 2014.

6. The applicants appeared before the Tribunal on 23 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

7. On 8 October 2015 the Tribunal set aside the delegate’s decision to refuse the nomination lodged by the nominator, Colour City Family Church Inc. and substituted a decision approving the nomination for the position of Minister of Religion (MRT 1412450).

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 meets the requirements of cl.186.233.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination).  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 person who will employ the applicant was the nominator in the application for approval

    ·the nomination has been approved and has not been subsequently withdrawn

    ·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 Tribunal is satisfied that the position of Minister of Religion is the same position that was the subject of the r.5.19 nomination application lodged by the proposed employer, Colour City Family Church Inc. As noted, the Tribunal approved the nomination for the position of Minister of Religion, lodged by Colour City Family Church Inc., on 8 October 2015. The Tribunal is also satisfied on the evidence before it that the position has not been withdrawn, and that it continues to satisfy the criteria for approval, that it is still available to the applicant and that the visa application was made no more than six months after the nomination of the position was approved. The applicant therefore meets the remaining paragraphs of cl.856.233. The Tribunal accordingly finds the first named applicant satisfies the requirements specified in cl.856.233.

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

    DECISION

14. 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.186.233 of Schedule 2 to the Regulations.

    Jennifer Ciantar
    Member