KIM (Migration)

[2018] AATA 2345

KIM (Migration) [2018] AATA 2345 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chanmyung KIM

CASE NUMBER:  1704064

DIBP REFERENCE(S):  BCC2016/868775

MEMBER:Karen McNamara

DATE:22 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.233 of Schedule 2 to the Regulations.

Statement made on 22 May 2018 at 12:56pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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 to refuse to grant Mr. Chanmyung (the applicant) a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 March 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination of a positon in relation to the applicant had not been approved.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

   Nomination of a position

8. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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.

9. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made 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.

10. The nominating employer, Lolli Redini Holdings Pty Ltd ATF ST Hawke Family Trust applied to the Department of Immigration for approval of a nomination in relation to the position of Cook. That nomination was refused by the Department and consequently the applicant’s visa application was refused.

11. Lolli Redini Holdings Pty Ltd ATF ST Hawke Family Trust applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No. 1701523). On 30 April 2018 the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19(4) of the Regulations.

12. Based on the evidence before it, the Tribunal is satisfied that:

    ·The person who will employ the applicant in the nominated position (that is Lolli Redini Holdings Pty Ltd ATF ST Hawke Family Trust), is the person who made the nomination.

    ·Lolli Redini Holdings Pty Ltd ATF ST Hawke Family Trust’s nomination for the position of Cook with the Lolli Redini Restaurant  has been approved by the Tribunal and has not been subsequently withdrawn.

    ·Having regard to the information on the related Tribunal and Department files in respect of the nomination application, there is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with the nominator.

    ·The  nominator advised at hearing the position is still available to Mr. Kim; and

    ·The visa application was made at the same time as the employer nomination and was therefore not made more than six months after the nomination was approved.

13. On the basis of the above, the Tribunal finds that the requirements of cl.187.233 are met.

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

    DECISION

15. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.233 of Schedule 2 to the Regulations.

    Karen McNamara
    Member