1510251 (Migration)

[2016] AATA 4732

1510251 (Migration) [2016] AATA 4732 (29 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kyung-suk Kim
Mrs Eunkyung Lee
Miss Esther Kim
Mr Daniel Kim
Mr Ezra Kim

CASE NUMBER:  1510251

DIBP REFERENCE(S):  BCC2014/3521233

MEMBER:Denise Connolly

DATE:29 November 2016

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 29 November 2016 at 11:59am

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 21 July 2015 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 22 December 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 on the basis that the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the associated nomination was not approved.

6. The applicants appeared before the Tribunal on 16 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Rev Sung Yong Cho a representative of the applicant’s sponsor, Disciples Church Incorporated. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

   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 is the person who made the nomination

    ·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.

11. The applicant’s nominating employer, Disciples Church Incorporated, applied to the Department for the approval of the position of Minister of Religion. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision.

12. On 29 November 2016, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant.

13. The Tribunal finds the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations.

14. On the evidence before it, the Tribunal is satisfied that:

    ·the person who will employ the applicant is the person who made the nomination;

    ·the nomination has now been approved and there is no evidence to indicate that it has been withdrawn;

    ·there is no evidence before the Tribunal to indicate there is ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person;

    ·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. Therefore, the Tribunal finds that the applicant meets cl.186.233.

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

    DECISION

17. 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.

    Denise Connolly
    A/g Senior Member