KIM (Migration)

[2018] AATA 2912

KIM (Migration) [2018] AATA 2912 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ki Won Kim
Ms In Kyoung Kim
Miss Hanseul Kim
Miss Hanbyeol Kim

CASE NUMBER:  1715116

DIBP REFERENCE(S):  BCC2016/4293819

MEMBER:Wan Shum

DATE:12 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(a) of Schedule 2 to the Regulations.

Statement made on 12 July 2018 at 4:03pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC ) – Subclass 457 (Temporary Work (Skilled)) – Standard business sponsor – Tribunal approved nomination for first named applicant – Secondary applicants – Members of the same family unit – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), Schedule 2 cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) Subclass 457 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 20 December 2016.

3. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the primary visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. The standard business sponsor in this case is S.Kim Pty Ltd ATF Jong Dae Im Family Trust, who applied for approval on 23 November 2016 for a Wall and Floor Tiler (ANZSCO code: 333411).

4. The nomination was refused and, on 23 June 2017, the delegate refused to grant the visas on the basis that cl.457.223(4)(a) was not met because the related nomination was not approved.

5. The first and second named applicants appeared before the Tribunal on 16 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jong Dae Im on behalf of the business. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a). This clause requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

7. On 12 July 2018, the Tribunal approved S.Kim Pty Ltd ATF Jong Dae Im Family Trust’s application for the nomination of a Wall and Floor Tiler under s.140GB of the Act. The nomination relates to the first named visa applicant. There is thus an approved nomination in respect of the first named visa applicant; and that nomination has not ceased.

8. For these reasons the requirements of cl.457.223(4)(a) are met.

9. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

   DECISION

10. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(a) of Schedule 2 to the Regulations.

    Wan Shum
    Member