1415130 (Migration)

[2015] AATA 3813

1415130 (Migration) [2015] AATA 3813 (4 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Mi Jeong Kim
Mr Wung Il Jo
Miss Han Na Cho
Mr Jun Yong Cho

CASE NUMBER:  1415130

DIBP REFERENCE(S):  BCC2014/837898

MEMBER:David Dobell

DATE:4 December 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 04 December 2015 at 3:58pm

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 29 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 25 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, in that there was no approved nomination. 

6. The applicants were invited to appear before the Tribunal on 1 October 2015 to give evidence and present arguments. This was a combined hearing with MRD case no. 1413763. The applicant was represented in relation to the review by its registered migration agent, and also attended the Tribunal hearing.  

7. After a complaint by the migration agent the matter was reconstituted to the current member, who was able to make a favourable decision in this matter without the need for a further hearing.

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. 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.

10. 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.

11. In the related nomination matter, on this same day the Tribunal set aside the decision under review and substituted a decision approving the nomination made by Sydney Hwaebok Church in relation to the applicant.

12. The Tribunal is also satisfied that the nomination has not since been withdrawn, that the position is still available to the applicant when the nomination was approved and that the visa application was made no more than six months after the nomination of the position was approved.

13. Therefore, cl.186.233 is met.

14. Given these findings, 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.186.233 of Schedule 2 to the Regulations

    David Dobell
    Member