NAM (Migration)

[2021] AATA 1379

NAM (Migration) [2021] AATA 1379 (30 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jiwon Nam
Mr Byeonggeon Park
Mr Seongjun Park
Mr Geunyeong Park

CASE NUMBER:  1819709

HOME AFFAIRS REFERENCE(S):          BCC2017/1256124

MEMBER:Katie Malyon

DATE:30 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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 30 April 2021 at 4:30 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of approved position nomination – refusal of related nomination application set aside on review – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a)

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 Home Affairs to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).  The applicants applied for the visas on 3 April 2017.  The delegate refused to grant the visas on 26 June 2018.

2. The delegate made the decision to refuse the visa applications on the basis that cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the first named applicant, Jiwon Nam, was not the subject of an approved nomination by her employer and approved standard business sponsor Moon Sushi Pty Ltd (the Company).

3. The Tribunal held a combined hearing of both the delegate’s refusal of the Company’s nomination (No. 1815505) and the consequent refusal of the applicants’ related Subclass 457 visas on 22 March 2021.  The hearings were held by way of MS Teams videoconference in light of the COVID-19 pandemic. 

4. On 30 April 2021, the Tribunal approved the nomination made by the Company in respect of nominee Ms Nam for the nominated occupation of Restaurant Manager ANZSCO 141111. Accordingly, the requirements of cl.457.223(4)(a) of the Regulations are now met.

5. Given the Tribunal’s finding that the requirements of cl.457.223(4)(a) of the Regulations are met, the appropriate course is to remit Ms Nam’s application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

6. The second, third and fourth named applicants, Mr Byeonggeon Park, Mr Seongjun Park and Mr Geunyeong Park, applied for their visas on the basis of being a member of the family unit of Ms Nam.  Accordingly, their applications will be determined by reference to the outcome of Ms Nam’s application on remittal to the Department for reconsideration.

   DECISION

7. The Tribunal remits the application 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

   Katie Malyon

   
   Member