Park (Migration)

[2020] AATA 307

Park (Migration) [2020] AATA 307 (5 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Junghoon Park
Ms Gyoungbo Park

CASE NUMBER:  1725091

HOME AFFAIRS REFERENCE(S):          BCC2017/2175120

MEMBER:Jane Bell

DATE:5 February 2020

PLACE OF DECISION:  Melbourne

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:

· cl.186.223 of Schedule 2 to the Regulations.

Statement made on 05 February 2020 at 3:00pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – subject of an approved nomination – nomination now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 27 September 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 20 June 2017. 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 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 Labour 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 Café or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) and thus did not meet cl.186.223 of Schedule 2 to the Regulations as a whole because the delegate was not satisfied that the applicant had an approved nomination for a position with his employer, which had not ceased. The delegate also refused to grant a subclass 186 visa to the second applicant on the grounds that she did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 186 visa, and there was no evidence that she met the primary visa criteria in her own right.

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 relevant nomination has been approved.

   Nomination of a position

8. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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 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. It is not disputed that the applicant’s employer, Emporium Sushi & Nori Pty Ltd (formerly known as Emporium Sushi Hon Pty Ltd), did not have an approved nomination in respect of the applicant at the time of the delegate’s decision.

11. However, the Tribunal is satisfied that Emporium Sushi & Nori Pty Ltd, lodged a review application with the Tribunal in relation to the refusal of its nomination of the applicant for the position of Café and Restaurant Manager, and that on 5 February 2020, the Tribunal set aside the Department’s refusal decision and substituted a decision to approve the nomination made by Emporium Sushi & Nori Pty Ltd.

12. Accordingly, the Tribunal is satisfied on the available evidence which includes evidence given in relation to the nomination review case lodged by Emporium Sushi & Nori Pty Ltd that:

    ·Emporium Sushi & Nori Pty Ltd made the original nomination application in respect of the applicant, and that the employer continues to employ the applicant;

    ·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.

13. Therefore, cl.186.223 is 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.

15. The delegate made a decision that the second named applicant did not satisfy cl.186.311, which requires that she is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and having made a combined application with the primary applicant.

16. As the second applicant applied on the basis that she is a member of the family unit of the applicant, her application will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.

    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.

    Jane Bell
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.