KOO (Migration)

[2020] AATA 5682

KOO (Migration) [2020] AATA 5682 (1 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs HEA SOON KOO
Mr HWA SEOK SONG
Mr HAJUN SONG
Mr HAJIN SONG

CASE NUMBER:  1800387

DIBP REFERENCE(S):  BCC2017/2171692

MEMBER:Ian Berry

DATE:1 December 2020

PLACE OF DECISION:  Brisbane

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 following criteria for a Subclass 186 (Employer Nomination Scheme) Visa:

·Clause 186.223 of Schedule 2 to the Regulations; and

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

·Clause 186.311 of Schedule 2 to the Regulations.

Statement made on 01 December 2020 at 12:35pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – position of Travel Agency Manager – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

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 19 December 2017 to refuse to grant the visa applicant a Employer Nomination (Permanent) Subclass 186 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant Mrs Hea Soon Koo, (the applicant) applied for the visa on 20 June 2017. The delegate refused to grant the visa on the basis that cl.186.223 was not satisfied as the applicant’s nomination had previously been refused.

3. The applicant appeared before the Tribunal on 30 April 2020 to give evidence and present arguments. The Tribunal received oral evidence from the applicant.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end. 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 Mr JW Chae registered migration number 0641352. The representative attended the Tribunal hearing.

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 the applicants meet the following criteria for a Subclass 186 visa:

   a.Clause 186.223 of Schedule 2 to the Regulations; and

   b.Clause 186.311 of Schedule 2 to the Regulations.

7. The criteria for the grant of a Subclass 186 visa are set out in Part one of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one person. 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 streams: The Temporary Residence Transition stream; the Direct Entry Stream; or, the Labour Agreement stream.

8. In this case, the applicant’s sponsor and nominator Bae Song Pty Ltd had its nomination application refused by the Minister’s delegate on 17 June 2017.  Subsequently the applicant’s visa application was refused on 19 December 2017 by reason of her sponsors application been refused.

9. On 26 November 2020, the Tribunal approved the sponsors application.

10. Further, having regard to the information obtained at the applicant’s hearing and having carefully reviewed both the Department and Tribunal files, 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 the applicant or any person associated with the applicant;

    c.The nominator has provided evidence that the position of travel agency manager has been employed by the applicant’s first sponsor Hyundai Tour since 4 November 2013 and with her subsequent sponsor Bay Song Pty Ltd since 27 March 2015.  The nominator Bae Song Pty Ltd continues to employ the applicant.  The applicant is, and continues to be the subject of a written employment contract for a minimum period of two years and which does not exclude a possible extension; and

    d.The visa application was made by the applicant no more than six months following the nomination of the position, which nomination was approved on review by the Tribunal on 26 November 2020.

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

12. The Tribunal finds that the second, third and fourth named applicants are each members of the family unit of the first named applicant, who is the applicant for a Subclass 186 visa, and who satisfies the primary criteria for the grant of the visa.

13. The Tribunal is further satisfied that the second, third and fourth named applicants made a combined application with the primary applicant.

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

    ·Clause 186.223 of Schedule 2 to the Regulations; and

16. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) Visas for, with the direction that the second, third and fourth named Applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·Clause 186.311 of Schedule 2 to the Regulations.

    Ian Berry
    Member