Kim (Migration)

[2019] AATA 2819

Kim (Migration) [2019] AATA 2819 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yunjun Kim
Ms Kyoung Jin Lee
Master Geunwoo Kim
Miss Jiwoo Kim

CASE NUMBER:  1706427

DIBP REFERENCE(S):  BCC2016/2406858

MEMBER:Ian Berry

DATE:27 February 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visa reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

·Cl.186.223 of Schedule 2 to the Regulations;

And

The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second, third and fourth named applicant’s meat the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·Cl.186.311 of Schedule 2 to the Regulations.

Statement made on 27 February 2019 at 12:47pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Chef – tribunal approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 186.223(2), 186.311, rr 1.13A, 1.13B

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 14 March 2017 to refuse to grant the visa applicant (Mr Kim) an Employer Nomination (Permanent) Subclass 186 visa under s.65 of the Migration Act 1958 (Act).

2. Mr Kim applied for the visa on 19 July 2016. The delegate refused to grant the visa on the basis that the nomination application identifying Mr Kim as the nominee was refused by the Minister pursuant to cl.186.223 of Schedule 2 to the Regulations.

3. The applicants appeared before the Tribunal on 20 February 2019 to give evidence and present arguments (in conjunction with the hearing of the nomination application). The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Mr Kim meets the requirements of cl.186.223(2) and is the subject of a nomination application which has been approved by the Minister.

7. It requires that this application, in this case the identified position is Chef ANZSCO 351311, is the subject of an application for approval of a nomination in the Temporary Residence Transition stream, identifying Mr Kim for that identified position.

8. The identified 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

9. In addition, this criterion also requires that:

   ·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 identified position is still available to Mr Kim; and

   ·Mr Kim’s application was made no more than six months after the nomination of the position was approved.

10. On 20 February 2019, the Tribunal set aside the refusal decision and substituted a decision approving the nomination.

11. The Tribunal therefore finds that Mr Kim meets the criterion in cl.186.223(2).

12. Having regard to the evidence obtained at the hearing and giving careful consideration to the evidence contained in the Department’s file and the file of the tribunal, the Tribunal is satisfied that:

    (a)The nomination has been approved and has not been subsequently withdrawn;

    (b)There is no adverse information known about Mr Kim or any person associated with him;

    (c)The nominator has provided evidence that the position of Chef has been occupied by Mr Kim on and from 17 July 2014 meaning that he has been employed for a period for at least four years on a full-time basis by his employer, the nominator. This nominator gave evidence at the hearing the identified position is still open for Mr Kim and is subject to a written employment contract for a minimum period of two years and which does not exclude a possible extension;

    (d)Mr Kim has made his application no more than six months following the nomination of the position, which nomination was approved on review by the Tribunal on 20 February 2019.

13. Therefore, the Tribunal finds cl.186.223 is met.

    Secondary applicants

14. The Tribunal finds that the second, third and fourth named applicant’s each members of the family unit of Mr Kim, who is the applicant for a Subclass 186 visa, and who satisfies the primary criteria for the grant of the visa.

15. The Tribunal is further satisfied that the second, third and fourth named applicant’s made a combined application with Mr Kim.

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 application for Employer Nomination (Permanent) (Class EN) visa reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

    ·Cl.186.223 of Schedule 2 to the Regulations;

    And

    The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second, third and fourth named applicant’s meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·Cl.186.311 of Schedule 2 to the Regulations.

    Ian Berry
    Member