BAE (Migration)

[2018] AATA 361

BAE (Migration) [2018] AATA 361 (8 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SEUNG HWAN BAE
Ms SUN-WOOK LEE
Miss SA-RANG BAE

CASE NUMBER:  1602169

DIBP REFERENCE(S):  BCC2015/1850672

MEMBER:R. Skaros

DATE:8 February 2018

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 February 2018 at 11:52am

CATCHWORDS
Migration – Employer Nomination (Permanent) visa – Subclass 186 (Employer Nomination Scheme) – Direct entry stream – Minister of Religion – Requirement to be subject of a valid nomination - Nomination refused by department – Nomination subsequently approved on review by Tribunal

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 5.19(4)(h)(i), Schedule 2, cl 186.233

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 3 February 2016 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 28 June 2015. 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 to which the position relates was not approved.

6. The applicants appeared before the Tribunal on 2 February 2018 to give evidence and present arguments.

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

9. The issue in the present case is whether the requirements of cl.186.233 are met.

   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 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.

12. The nominating employer, the Sydney Manmin Holiness Church (the Church), applied to the Department for approval of a nomination in relation to the position of Minister of Religion. That nomination was refused by the Department and consequently the applicants’ visa applications were refused.

13. The Church applied for review of the decision not to approve the nomination (AAT Case No. 1600319). On 8 February 2018, the Tribunal set aside the delegate’s decision and substituted a new decision approving the nomination. The Tribunal is satisfied on the basis of that approval that the relevant nomination in respect of the applicant has now been approved. The nomination has not been subsequently withdrawn.

14. Having regard to the information on the related Tribunal file in respect of the nomination application, the Tribunal is also satisfied that there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person. The Tribunal is also satisfied on the basis of the supporting documents and the evidence provided at the hearing that the position is still available to the applicant.

15. The visa application was made at the same time as the employer nomination and was therefore not made more than 6 months after the approval of the nomination.

16. On the basis of the above, the Tribunal finds that the requirements of cl.186.233 are met.

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

    DECISION

18. 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.

    R. Skaros
    Member