Jeong (Migration)

[2020] AATA 3332

Jeong (Migration) [2020] AATA 3332 (10 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanghun Jeong

CASE NUMBER:  1812620

HOME AFFAIRS REFERENCE(S):          BCC2017/678323

MEMBER:George Hallwood

DATE:10 August 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the 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 10 August 2020 at 3:03pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Stream) – temporary residence transition stream – related nomination of position refused – refusal set aside on review – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(1)

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 16 April 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 20 February 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Motor Mechanic.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the related nomination had been refused by the delegate.

6. The applicant appeared before the Tribunal by telephone on 14 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hyun Duk Lee in a combined hearing with the related nominator application 1808005. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

8. The applicant was advised in advance that the hearing would be a combined hearing by telephone and offered an opportunity to raise any objections. At the hearing the applicant was asked if they were satisfied with having a combined hearing by telephone and they agreed. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination in order to meet cl.186.223 of Schedule 2 to the Regulations.

    Nomination of a position

12. 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.

13. 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.

14. On 10 August 2020 the related nomination was approved by the Tribunal.

15. The Tribunal considered the requirements of cl.188.223(1) and finds that position to which the application relates is the position:

    a)    nominated in the application for approval dated 20 February 2020 in the related case 1808005 that sought 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.

16. The Tribunal has considered the material provided by the department and is not aware of any adverse information about the person that made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B).

17. Mr Lee for the nominee, Lee and Park Pty Ltd, provided oral evidence that the position is still available to Mr Jeong and this is supported by an Employment Agreement dated 4 August 2020.

18. The Tribunal is satisfied from documentation provided by the Department that the visa application was made no more than six months after the nomination of the position was approved.  

19. For these reasons, the Tribunal is satisfied cl.186.223 is met.

    CONCLUDING PARAGRAPH

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

    DECISION

21. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.223 of Schedule 2 to the Regulations.

    George Hallwood
    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.