Park (Migration)

[2017] AATA 624

Park (Migration) [2017] AATA 624 (10 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Youngwhan Park
Ms Hyunja Kim
Mr Johan Park

CASE NUMBER:  1516364

DIBP REFERENCE(S):  BCC2015/1513968

MEMBER:R. Skaros

DATE:10 April 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 10 April 2017 at 9:51am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Nomination refused – Review of nomination refusal withdrawn

LEGISLATION
Migration Act 1958

, ss 65, 359A
, Schedule 2, cl 186.223, cl 186.233(3), r 1.13, r 5.19

Migration Regulations 1994

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 9 November 2015 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 to the Department of Immigration for the visas on 27 May 2015. 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 Direct Entry stream, to work in the nominated position of Minister of Religion. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 nominated position in respect of the applicant had not been approved.

6. The first and second named applicants appeared before the Tribunal on 28 February 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

7. The applicants were represented in relation to the review by their registered migration agent.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements in cl.186.233.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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 person who will employ the applicant is the person who made the nomination

    ·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. An application for approval of the nominated position in relation to the applicant was made by the Jesus Love Church Inc. The Department refused that nomination and the Jesus Love Church applied to the Tribunal for review of that decision. On 12 January 2017 the Jesus Love Church withdrew its application for review of the decision not to approve the nomination. As the review was withdrawn, the Tribunal found that it did not have jurisdiction to review that application.

13. On 30 January 2017 the Tribunal wrote to the review applicants in accordance with the requirements of s.359A, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the Jesus Love Church withdrawing its application for review of the nomination, which the Tribunal explained is relevant to the requirement in cl.186.223 which requires the relevant nomination to have been approved.

14. On 13 February 2017 the applicant’s representative wrote to the Tribunal advising that the withdrawal of the review by the nominator was contrary to the consensus of the congregation who are keen to continue to nominate the applicant. It was submitted that the applicant wished to have the withdrawal of the nomination revoked.  

15. Prior to the hearing, the applicant provided a written submission, much of which he also reiterated in his oral evidence. At the hearing the Tribunal explained to the applicant that it did not have the power to revoke the decision made in respect of the nomination as it was a different application for review made by the nominator and that the authorised person had requested that it be withdrawn. It explained that the Tribunal had found that it had no jurisdiction in respect of that application and that matter had now been finalised and cannot be revoked by the Tribunal.  

16. The applicant provided details of his background as a missionary and his time in Australia. He provided details of his immigration history and his involvement with the Jesus Love Church. He explained that the withdrawal of the nomination was due to conflict between himself and the pastor of the church, who made threats and demands. The applicant requested he be allowed to remain in Australia to minister to the Korean community.

17. The Tribunal has considered the evidence before it and while it has had regard to the applicant’s evidence that he continues to have the support of the church and acknowledges the reasons given as to why the nomination in relation to him had been withdrawn, as explained to the applicant at the hearing, the Tribunal has no discretion in this matter and must make its decision in accordance with the legislative provisions.

18. For the applicant to meet cl.186.233 the position to which the application relates must have been approved and not been subsequently withdrawn. In this case, the nomination of the position was not approved by the Department and the review of that decision was withdrawn. As there is no approved nomination, the applicant does not meet the requirement in cl.186.233(3) and therefore does not meet cl.186.233 in its entirety. 

19. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

20. The secondary applicants are members of the first named applicant’s family unit. There is no evidence to suggest that any of the secondary applicants meet the primary criteria for the grant of the visa. As the Tribunal has found that the first named applicant does not meet the criteria for the grant of the visa, in the circumstances, the Tribunal must also affirm the decision in relation to the secondary applicants.

    DECISION

21. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    R. Skaros
    Member