CHO (Migration)

[2018] AATA 265

CHO (Migration) [2018] AATA 265 (15 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sujeong CHO
Mr Hyungkwang LEE
Ms Jina LEE
Mr Taegyun LEE

CASE NUMBER:  1713568

DIBP REFERENCE(S):  BCC2015/1483713

MEMBER:Kate Timbs

DATE:15 February 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 15 February 2018 at 8:51am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Federal Circuit Court Remit – Vocational English requirement – Tax assessment notice – Future earnings – Triple increase in salary – Not a credible witness

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15B, Schedule 2 cl 186.222

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 to refuse to grant Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. Ms Cho applied to the Department of Immigration for the visas on 24 May 2015. The delegate refused to grant the visas on 6 January 2016.

3. On 18 January 2016, Ms Cho applied for review of that decision.

4. The Tribunal (differently constituted) decided to affirm that decision on 6 February 2017. On 21 June 2017, the Federal Circuit Court found the Tribunal had made an error of law and ordered the Tribunal to reconsider the application for review.

5. The Tribunal (as currently constituted) heard the application for review again on 11 December 2017 and 14 February 2018.

   RELEVANT LAW AND ISSUES FOR THE TRIBUNAL TO DETERMINE

6. Ms Cho is the primary visa applicant in the temporary residence transition stream.

7. To be granted the visa, she must meet the relevant criteria in Part 186 of Schedule 2 to the Migration Regulations. The delegate found she did not meet the criteria in clause 186.222 because she did not have “vocational English” and was not in a class of persons specified by the Minister as exempt from that requirement.

8. Ms Cho concedes she does not have “vocational English” (as defined by regulation 1.15B) but claims she is in class 2 of persons specified by the Minister in IMMI 12/059.[1] (Class 1 which relates to Ministers of Religion is not relevant to her.) Class 2 is “persons whose earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate”, which was $182,000 a year when the Minister made the determination. To deal with Ms Cho’s application for review, the Tribunal considered whether her earnings will be as much as $182,000 a year if the visa were granted.

   [1] Federal Register of Legislative Instruments F2012L01292

9. The other applicants have applied as members of Ms Cho’s family unit and do not contend that they meet the primary criteria. To be granted the visas they must meet the secondary criteria in Part 186.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence considered

10. The Tribunal considered documents in the Department’s visa application file and those provided to the Tribunal by Ms Cho. It heard evidence from her at the first and second days of hearing. Mr Ryu Hei Gwon gave evidence on the second day of hearing.

11. Ms Cho was represented by registered migration agents Ms Yun Og Park on the first day of hearing and Mr Kyu Man Hwang on the second day of hearing.

    Ms Cho’s earnings

12. The reasons for decision of the Tribunal (as firstly constituted) indicate Ms Cho told it that she was receiving a salary from her employer, Park and K Pty Ltd (the company) of at least $182,000. To corroborate that evidence, she provided employment contracts, payslips for December 2016 and an employment payment summary (group certificate) for the 2016 financial year. The group certificate stated the company paid her $182,000 gross and remitted the necessary tax to the Australian Taxation Office.

13. On the first day of hearing by the Tribunal (as presently constituted), Ms Cho said she had earned about $60,000 a year in her current position until about May 2016 and her employer increased her salary to $182,000 in accordance with the employment contracts at that time. The Tribunal repeated an invitation (made with the hearing invitation) for Ms Cho to provide her tax returns for the 2016 and 2017 financial years (and other documents). She said she had not done her tax returns and the Tribunal adjourned the hearing to give her time to do so. On the second day of hearing, she provided a 2016 tax assessment notice issued in March 2017 and a recently issued 2017 tax assessment notice. Both show taxable incomes of approximately $60,000.

14. Ms Cho agreed her tax assessment notices were inconsistent with the information and documents she provided to the Tribunal about her earnings during the 2016 and 2017 financial years. She said her earlier oral evidence and the documents she provided contained false information. She claimed she acted on the advice of her first migration agent but the Tribunal does not accept that she did not understand her actions (including providing false oral evidence). It gives no weight to the documents she has provided to the Tribunal to corroborate he false oral evidence and finds she is not a credible witness.

15. Mr Hwang pointed out that Ms Cho need not have been paid $182,000 a year when she applied for the visa. It is sufficient if she would be paid the amount if the visa were granted. Ms Cho and Mr Gwon asserted that was the case and her earnings would increase to $182,000 at that time.

16. Mr Gwon told the Tribunal he is the sole director and shareholder of the company. However, ASIC searches obtained after the hearing show he is one of two directors and one of three shareholders. The Tribunal infers he did not understand its question about his role in the company and does not make adverse inferences. It accepts that he has authority to speak on behalf of the company and knows about its employment arrangements.

17. Mr Gwon told the Tribunal the company had decided to increase Ms Cho’s salary because she had done such a good job and because it plans to expand from one restaurant to about 10 restaurants. The Tribunal said it accepted businesses increase salaries by increments for good performance or for additional duties. However, it suggested to Mr Gwon that it is unlikely the company would increase an employee’s salary by three times for those reasons. He said he felt bad about having paid her such a low salary over the past five years because she had done so much to expand the business. The Tribunal is unconvinced by this explanation.

18. The Tribunal does not find, as submitted by Mr Hwang, that Ms Cho’s experience and role make a very significant wage increase more likely. In particular, it does not accept she is performing three jobs as “marketing specialist, marketing manager and marketing director”. Her explanation of her duties is not consistent with that assertion or with expenditure of $4,000 or less for advertising recorded in the company’s 2016 and 2017 financial statements.

19. The Tribunal also noted that, while gross takings increased from 2016 to 2017, the profit reduced from approximately $31,000 in 2016 to approximately $2,000 in 2017 (largely because of rent increases). The business would make a significant loss if other things stayed the same and it increased its wages bill by approximately $120,000 to pay Ms Cho $182,000 a year. The Tribunal therefore does not accept Mr Hwang’s submission that “it would be viable for the employer to pay the applicant’s proposed salary”.

20. The Tribunal does not accept Ms Cho’s evidence because she is not credible and it is unconvinced by Mr Gwon’s evidence and Mr Hwang’s submissions. There are no other relevant submissions or evidence to corroborate Ms Cho’s assertions about her future earnings. The Tribunal finds she will not be paid $182,000 if the visa is granted.

21. In that case, Ms Cho is not a person in a class specified by the Minister in the relevant instrument and is not exempt from the vocational English requirement. She does not satisfy clause 186.222 and the Tribunal will affirm the decision under review to refuse to grant the visa for that reason.

    Secondary applicants

22. Having affirmed the decision to refuse to grant Ms Cho’s visa, the Tribunal finds the other applicants do not satisfy clause 186.311 because they are not “member(s) 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”. The Tribunal will affirm the decision to refuse to grant them visas for that reason.

    DECISION

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

    Kate Timbs
    Member