Lee (Migration)

[2018] AATA 1991

Lee (Migration) [2018] AATA 1991 (15 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Donghyun Lee
Ms Hye Jung Yu
Ms Yongye Kwon
Master Aiden Seungwoo Lee

CASE NUMBER:  1712240

DIBP REFERENCE(S):  BCC2016/3810404

MEMBER:Hugh Sanderson

DATE:15 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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:

·cl.186.223 of Schedule 2 to the Regulations.

Statement made on 15 June 2018 at 8:58am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – nominated position of accountant – Nomination approved by the Tribunal – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19 Schedule 2 cl 186.233

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 9 June 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 November 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

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 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 accountant. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the Department had previously refused the nomination application of the sponsor.

6. Both the sponsor and the applicant applied to the Tribunal for reviews of the decisions to refuse the nomination application and the visa application. On 14 June 2018 the Tribunal issued a decision setting aside Department’s decision in respect of the nomination application and substituted a decision approving the nomination. Accordingly, the applicant is now subject to an approved nomination.

7. The Tribunal has proceeded to a decision without the need for a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is the subject of an approved nomination.

   Nomination of a position

10. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

11. 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 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.

12. The Tribunal set aside the Department’s decision refusing the nomination application and substituted a decision approving the nomination on 14 June 2018. The applicant is now the subject of an approved nomination. The nomination application has not been withdrawn.

13. There is no information be for the Tribunal that there is any adverse information known to the Department about the sponsor or any person associated with the sponsor. The position of accountant is still available to the applicant in the sponsor’s business. The application was made within the required time period.

14. For the above reasons, the Tribunal finds that, cl.186.223 is met.

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

16. The second named applicants have applied for the visa on the basis of being a member of the family unit of a person who meets the primary criteria. As the Tribunal has found the first named applicant meets the criteria in cl.186.223 and his application is now be reconsidered in full, the applications of the second named applicants must now be reconsidered in full.

    DECISION

17. The Tribunal remits the applications 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:

    ·cl.186.223 of Schedule 2 to the Regulations.

    Hugh Sanderson
    Member