Jeong (Migration)

[2020] AATA 4136

Jeong (Migration) [2020] AATA 4136 (29 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Taegyun Jeong
Ms Yunhee Park

CASE NUMBER:  1813110

HOME AFFAIRS REFERENCE(S):          BCC2017/1150285

MEMBER:Susan Hoffman

DATE:29 September 2020

PLACE OF DECISION:  Perth

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 of Schedule 2 to the Regulations.

Statement made on 29 September 2020 at 7:13am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Customer Service Manager – subject of an approved nomination ­­– adverse information – anonymous dob-in to the Department – unsubstantiated allegations – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 Home Affairs on 26 April 2018 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 24 March 2017. 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 Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager (ANZSCO 149212).

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 nomination application made by the applicant’s employer, Auswin Cleaning Service Pty Ltd (Auswin), had not been approved.

6. The applicants appeared before the Tribunal on 10 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sung Ho Wang, the owner and director of Auswin. A joint hearing was held for the nomination application and the visa application. 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. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in the present case are whether or not there is an approved nomination and whether it is reasonable to disregard adverse information.

   Nomination of a position

10. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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 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. The Tribunal is satisfied that the position relevant to this visa application is the position identified in a nomination application, being that of a Customer Service Manager, and that the nomination identified this visa applicant for that position.

13. The Tribunal has reviewed the decision by the Department to refuse the nomination application from the nominee’s employer, Auswin, and has set that decision aside, substituting it with a decision to approve the nomination.

14. There was evidence before the Tribunal of adverse information which the Tribunal addressed in its decision regarding the nomination application. The following reflects its findings in that matter.

15. The departmental file for Auswin included a section 376 certificate which the Tribunal is satisfied was valid. It was dated 14 November 2018 and signed. The certificate had been issued in relation to an anonymous dob-in to the Department, alleging that the boss of the company [Auswin] had received payments from a subclass 457 visa holder in exchange for a permanent residence application. It was also alleged that “there are many illegal acts in the company”. These were not specified.

16. Although the information had been provided anonymously, there was detail that might lead to the identification of the person who contacted the Department, which the Tribunal considers is not in the public interest. The Tribunal informed the applicants at the hearing (noting that the nomination application and visa application hearings were held together at the applicants’ request) of the substance of the allegations as set out in the preceding paragraph.

17. The Tribunal exercised its discretion to disclose the substance of the allegations as they relate directly to nomination and visa applications; the boss referred to being the owner and director of Auswin, Mr Wang, and as there is no other subclass 457 visa holder, that person has to be Mr Jeong who, as an employee of Mr Wang, is an associated person.

18. The Tribunal gave the particulars of the information at the hearing under section 359A as follows:

    ·There is what appears to be adverse information covered by a s.376 certificate issued by the Department.

    ·That this information would be a reason, or part of the reason, for affirming the decision not to approve the nomination.

    ·That the Tribunal needed to ensure that the applicant understood why the information was relevant to the review, and the consequences of the information being relied upon in affirming the decision under review.

    ·That Mr Wang would be asked to respond to the information but before then, the hearing could be adjourned for 15 minutes or another period of time, to consider the information and what his response might be.

    ·That if he wanted more time than that to address the information, he should ask for it and that could include making a submission after the hearing.

    ·The relevance of the information was that if the Tribunal accepted the information, did not find it reasonable to disregard it, and found it to be adverse to the applicant’s case, that would be the reason, or part of the reason, for determining that the nomination cannot be approved. (Without an approved nomination, the visa application cannot succeed.)

19. The Tribunal read out relevant parts of the s.376 certificate such that both Mr Wang and Mr Jeong were made aware of the substance of the allegations as set out above.

20. There was an adjournment for 15 minutes, after which Mr Wang said that the dob-in information was completely wrong. He had never sold or attempted to sell a visa or taken money unfairly.

21. He said that he had operated his business properly, and his business operations were legitimate and lawful. He said the allegation was malicious. If he had wanted to make money in that way (i.e. taking money to help people get permanent residence), he would have operated another type of business, not a cleaning service.

22. Mr Wang said that the Mr Jeong had been with him from the start of the business and was a devoted and loyal employee who had contributed to the development of the business.

23. Mr Wang said this was the first time he had heard of the accusation and was so unexpected, he did not know what to say. He offered to provide any information which would help address the allegation.

24. Mr Jeong also spoke on this issue. He said that ever since he started living in Australia, he wanted to stay here permanently, but if the allegation was true – that he had to pay money to a boss to be helped to get a permanent visa – he said that he would not have worked for that business. He submitted that he has always led his life in the right way and had never done such a thing.

25. The Tribunal told the applicants that it would defer making its decision for at least two weeks to allow time for further submissions on this, and other, issues.

26. After the hearing, Mr Wang provided a statutory declaration dated 19 September 2020 in which he stated the allegation made about him was not true and that he has never done anything illegal or wrong, and has never breached any terms or conditions regarding Mr Jeong’s employment. Mr Wang wrote that he felt it was unfair that he had to respond to a false accusation by an anonymous person.

27. Mr Jeong also provided a statutory declaration, dated 18 September 2020. He stated that he was shocked when he heard the allegation. He wrote that he was very upset about the unreasonable claims and wondered who would make such a lie to Immigration and for what purpose. He denied that there had been any wrongdoings in the company regarding his employment or visa as far as he knew.

28. The Tribunal formed the view at the hearing, that Mr Wang’s and Mr Jeong’s responses to the allegations were genuine and that they were shocked and surprised by them. The Tribunal found the standard of written submissions to do with the nomination, before and after the hearing, to be good and comprehensive. There was nothing in any of the written submissions or record-keeping, or evidence given at hearing, that suggested any untoward behaviour on the part of Mr Wang or Mr Jeong.

29. The Tribunal accepted the submissions as to the value of Mr Jeong to the business, and his role in developing it. The Tribunal did not consider it likely that Mr Wang would seek to gain a financial advantage in relation to Mr Jeong’s visa. The growth of the business suggests that Mr Wang benefits more by having Mr Jeong work for him and help him grow the business, than by getting Mr Jeong to pay Mr Wang to obtain a visa. It does not make sense to the Tribunal that Mr Wang would jeopardise his business in that way. Further, the Tribunal gained the impression during the hearing through their interactions that there was mutual respect between the two men.

30. In light of the foregoing, including that these are unsubstantiated allegations, and it is possible they were done by someone with malicious intent who disliked either or both men, the Tribunal considers it is reasonable to disregard the adverse information. 

31. Following oral and written submissions made by Mr Wang, the Tribunal is satisfied that the position has not been withdrawn and is still available to the applicant. It was apparent from Mr Wang’s submissions that he considers that Mr Jeong plays a critical role in the business.

32. As the visa application was made on 24 March 2017, and the nomination was approved on 29 September 2020, the Tribunal is satisfied that the visa application was not made more than six months after the nomination of the position was approved.

33. Therefore, cl.186.223 is met.

    CONCLUDING PARAGRAPH

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

35. Also, given the Tribunal’s finding with regard to the primary applicant, the application made by the secondary applicant should be reconsidered.

    DECISION

36. The Tribunal remits the applications 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 of Schedule 2 to the Regulations; and

    Susan Hoffman
    Member

    
    

    ATTACHMENT A

    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.