Jun (Migration)

[2023] AATA 1587

Jun (Migration) [2023] AATA 1587 (30 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yu Ri Jun
Mr Inhwi Lee

REPRESENTATIVE:  Mr Konfir Kabo

CASE NUMBER:  2213923

HOME AFFAIRS REFERENCE(S):          BCC2019/5789397

MEMBER:R. Skaros

DATE:30 May 2023

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 186.223(2) of Schedule 2 to the Regulations.

Statement made on 30 May 2023 at 10:22am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – massage therapist – subject of approved position nomination – refusal of related nomination application set aside in separate hearing – decision made without hearing necessary – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(2)

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 Home Affairs on 8 September 2022 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 15 November 2019. 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 (Cth) (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 the Temporary Residence Transition stream, to work in the nominated position of Massage Therapist.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the nomination of the position in respect of the applicant was not approved.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the relevant nomination has been approved.

9. 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. In addition, this criterion also requires that the nomination has been approved: cl 186.223(2).  

10. The applicant was nominated by Catsbeauty Pty Ltd in the position of Massage Therapist. The nomination, which was made in the Temporary Residence Transition Stream and identified the applicant, who was then the holder of a Subclass 457 visa, was refused by the Department.

11. Catsbeauty Pty Ltd applied for review of the decision to refuse the nomination. On 25 May 2023 the Tribunal set aside the decision to refuse the nomination and substituted a decision approving the nomination.

12. As the relevant nomination has now been approved, cl 186.223(2) is met.

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

    DECISION

14. 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 186.223(2) of Schedule 2 to the Regulations.

    R. Skaros
    Senior Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.