HWANG (Migration)

[2018] AATA 115

HWANG (Migration) [2018] AATA 115 (19 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr TAEJUN HWANG
Ms HEE YUN
Mr DANHYO HWANG
Miss IRIN HWANG

CASE NUMBER:  1614958

DIBP REFERENCE(S):  BCC2015/3430467

MEMBER:Susan Trotter

DATE:19 January 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications 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 19 January 2018 at 4:49pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Employer Nomination approved

LEGISLATION
Migration Act 1958, ss 65, 360(2)(a)-(b)
Migration Regulations 1994, r 5.19(3), 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 9 September 2016 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 and Border Protection for the visas on 20 November 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 Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because there was no approved nomination.

6. On 23 October 2017, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 November 2017.

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

8. On 2 November 2017, the Tribunal received a hearing response indicating that neither the applicants nor their agent would be attending the hearing.

9. On 7 November 2017, the applicants’ representative confirmed that the Tribunal may make a decision on the review application based on provided documents and information without the scheduled hearing.

10. The applicant thereby consented to the Tribunal proceeding to make a decision on the review without appearing before it: s.360(2)(b) of the Act.

11. Further and in any event, in reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

14. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

15. The first-named applicant’s nominating employer, Korean Trading Group Pty Ltd, applied to the Department for the approval of the position of Marketing Specialist in respect of the applicant. The Department refused to approve the nomination and the employer applied to the Tribunal for review of that decision.

16. On 19 January 2018, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant, who was a 457 visa holder at the time of the nomination, under r.5.19(3).

17. As the relevant nomination in respect of the applicant has been approved, the applicant accordingly meets the requirement in cl.186.223(2).

18. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

19. The delegate made a decision that the second, third and fourth-named applicants did not satisfy cl.186.311, which requires that they are members 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. The Tribunal is unable to make a direction that the secondary applicants meet this criterion, because at the time of the Tribunal’s decision, the first-named applicant does not hold a Subclass 186 visa. The Tribunal refers the case of the secondary applicant to the Department to consider their applications afresh.

    DECISION

20. The Tribunal remits the applications 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.

    Susan Trotter
    Member