PARK (Migration)

[2018] AATA 4796

PARK (Migration) [2018] AATA 4796 (4 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Samuel Park
Ms Seonhwa Kim
Master Ruah Ruha Park

CASE NUMBER:  1711254

HOME AFFAIRS REFERENCE(S):           BCC2016/3589013

MEMBER:Katie Malyon

DATE:4 October 2018

PLACE OF DECISION:  Sydney

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(2) of Schedule 2 to the Regulations.

Statement made on 04 October 2018 at 11:23am

CATCHWORDS
MIGRATION –Employer Nomination – Subclass 186 (Employee Nomination Scheme) – temporary residence transition scheme – nominated position – customer service manager – Tribunal approved Company’s nomination – secondary applicants – members of the same family unit – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s65
Migration Regulations 1994 (Cth), 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 12 May 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 27 October 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 3 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 Mr Samuel Park, is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager with his employer and nominator, Topstar International Pty Ltd (the Company).

5. The delegate refused to grant the visas on the basis Mr Park did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination application made by the Company was refused by the Department on 12 April 2017. The Company applied to the Tribunal for review of the delegate’s decision to refuse the nomination application.

6. The Tribunal conducted a review of the decision to refuse the Company's nomination (AAT File 1709575) as a combined hearing with its review of refusal of the applicants’ Subclass 186 visa application.  A Director of the Company, Ms In La Hu, appeared before the Tribunal on 25 May 2018 to give evidence and present arguments on behalf of the Company.  The Tribunal also received evidence from Mr Park. 

7. Both the Company and Mr Park were represented in relation to their respective review by the same registered migration agent, who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. On 4 October 2018, the Tribunal approved the nomination application made by the Company in respect of the position of Customer Service Manager for nominee Mr Park under r.5.19(3) of the Regulations. Accordingly, cl.186.223(2) of Schedule 2 to the Regulations is met.

10. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

11. The second named applicant and the third named applicant applied for their visas on the basis of being a member of the family unit of the first named applicant Mr Park.  In the circumstances, their applications will be determined by reference to the outcome of Mr Park’s application on remittal to the Department for reconsideration.

    DECISION

12. The Tribunal remits the applicants’ 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.186.233(2) of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from the igration Regulations 1994

    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.

    oOOo