CHAI (Migration)

[2018] AATA 4841

CHAI (Migration) [2018] AATA 4841 (4 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms IN SOOK CHAI
Mr DONGSIG AN
Ms EUNMI AN

CASE NUMBER:  1702799

HOME AFFAIRS REFERENCE(S):           BCC2016/1936949

MEMBER:Jennifer Cripps Watts

DATE:4 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 04 October 2018 at 10:12am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) – direct entry stream – nominated position – Café or restaurant manager – Tribunal affirms nomination refusal – secondary applicants – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2 cls 186.223, 186.311

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 8 March 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 3 June 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 Labour 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 Café or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because she was not the subject of an approved nomination.

6. The applicants were invited to a scheduled hearing.  None of the applicants appeared before the Tribunal at the scheduled hearing to give evidence and present arguments.  The applicant did not request a hearing postponement and gave no reason for the non-attendance.

7. A decision was made on the review with respect to Mapo Galbi Pty Ltd on 19 September 2018.  The Tribunal affirmed the decision to refuse the nomination. 

8. The applicant was sent a s.359A letter on the same day, informing her of the nomination refusal for Mapo Galbi Pty Ltd, relating to her visa application, and inviting comment or response to adverse information, that being that she is not the subject of an approved nomination which would be a reason to affirm the decision to refuse her visa. The date for response was 3 October 2018. The applicant did not comment or respond, nor did she request an extension of time.

9. The applicants were represented in relation to the review by their registered migration agent, Nicole Yoo, Migration Agent Registration Number.  Ms Yoo is the authorised recipient, as advised by the applicant.  Neither the applicant, nor Ms Yoo has responded to any Tribunal communications.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant is the subject of an approved nomination.  The secondary applicants can only meet the criteria for the grant of the visa if they are members of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant.  If the applicant does not hold a Subclass 186 visa, the secondary applicants cannot meet the secondary criteria:  cl.186.311.   

    Nomination of a position

12. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

13. 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.

14. Relevantly, the applicant is not the subject of an approved nomination.  The decision to refuse the nomination was affirmed by the Tribunal on 18 September 2018.  In line with statutory obligations, the applicant was invited to comment on this adverse information.  She did not respond or comment.  The applicant does not therefore meet cl186.233.

15. 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.

16. For the secondary applicants to meet the criteria for the grant of their visas, they must be a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.  There is no evidence before the Tribunal that the secondary applicants are members of the family unit of a person holds a Subclass 186 visa and the Tribunal must also affirm the decision to refuse their visas.

    DECISION

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

    Jennifer Cripps Watts
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    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.

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

    (6)      The application for the visa is made not more than 6 months after the Minister approved the nomination.