KIM (Migration)

[2018] AATA 5322

KIM (Migration) [2018] AATA 5322 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sung Hee KIM
Mr Ki Jung Kim
Mr Seongeun Kim

CASE NUMBER:  1701361

HOME AFFAIRS REFERENCE(S):           BCC2016/1837608

MEMBER:Wan Shum

DATE:29 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 29 October 2018 at 2:11pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Minister of Religion – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 6 January 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 25 May 2016.

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 Temporary Residence Transition stream, to work in the nominated position of Minister of Religion. The applicant was being nominated for the position by The Church of Holy Spirit's Fire.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination made by The Church of Holy Spirit's Fire was refused.

6. The Church of Holy Spirit's Fire sought review of the nomination refusal to the Tribunal. The first named applicant attended the hearing as the representative of the Church. A decision was made on 10 October 2018.

7. The Tribunal wrote to the applicants on 12 October 2018 regarding this information. It also requested that the applicants advise whether they wished to attend a separate hearing in relation to the visa refusal. On 26 October 2018, the Tribunal received a response from the applicants advising that they understood the reason for the nomination refusal and that they wanted a decision to be made without a separate hearing about the visa refusal.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant is the Pastor of The Church of Holy Spirit's Fire. Both the application for the approval of the nomination and for the visas was made under the Temporary Residence Transition stream. However, that nomination could not be approved as the applicant was not the holder of a Subclass 457 visa. The Tribunal affirmed the decision not to approve the nomination on 10 October 2018.

10. As explained to the first named applicant and her daughter during the hearing for the Church, a criterion for the visa would not be met if the nomination could not be approved.

11. This criterion is cl.186.223(2) which requires that the position to which the application relates is the subject of an approved nomination. Following the decision of the Tribunal to affirm the refusal of the nomination, the position to which the visa application relates is not the subject of an approved nomination. Therefore, cl.186.223(2) is not met.

12. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

13. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Wan Shum
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; 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.