Kang (Migration)

[2020] AATA 740

Kang (Migration) [2020] AATA 740 (16 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr CHANGDOO KANG
Mrs HYANG SOOK KIM
Miss SOOYOUN KANG
Miss Minkyung KANG
Miss Minji KANG

CASE NUMBER:  1727564

HOME AFFAIRS REFERENCE(S):          BCC2017/1960855

MEMBER:Sheridan Lee

DATE:16 March 2020

PLACE OF DECISION:  Melbourne

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 requirements in cl.186.233 of Schedule 2 to the Migration Regulations 1994.

Statement made on 16 March 2020 at 3:51pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Sales and Marketing Manager ­– subject of an approved nomination ­­– nomination application now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 and Border Protection on 7 November 2017 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 for the visas on 2 June 2017. 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 Labour 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 Sales and Marketing Manager.

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 application lodged by the applicant’s prospective employer was refused by the Department.

6. The applicant appeared before the Tribunal on 19 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jong do Lee on behalf of the applicant’s prospective employer, The Piano & Music Junction Pty Ltd. 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.

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. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

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, The Piano & Music Junction, applied to the Department of Home Affairs for the approval of the position of Sales and Marketing Manager in respect of the applicant. The Department refused to approve the nomination and the employer subsequently applied to the Tribunal for review of that decision.

12. On 16 March 2020, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant. As the relevant nomination has now been approved, the applicant meets the requirement in cl. 186.223(2).

13. 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 satisfied that there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person.

15. The Tribunal is also satisfied on the basis of the supporting documents and the evidence provided by the employer at the hearing in respect of the nomination that the position is still available to the applicant.

16. 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.

17. Accordingly, cl.186.233 is met.

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

19. As the second, third, fourth and fifth named applicants applied on the basis of being a member of the family unit of the first named applicant, their application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

20. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the requirements in cl.186.233 of Schedule 2 to the Migration Regulations.

    Sheridan Lee
    Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.