Jo (Migration)

[2019] AATA 2816

Jo (Migration) [2019] AATA 2816 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Hye Jin Jo
Mr Jungo Hwang

CASE NUMBER:  1700337

HOME AFFAIRS REFERENCE(S):           BCC2016/931263

MEMBER:R. Skaros

DATE:27 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 February 2019 at 2:07pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Marketing Specialist – nomination not approved – tribunal affirmed refusal decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 376
Migration Regulations 1994, 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 Immigration and Border Protection on 19 December 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 for the visas on 6 March 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 Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist with Green World Management Pty Ltd.

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 in relation to the applicant was not approved.

6. A copy of the delegate’s decision record was provided with the application for review.

7. The applicant appeared before the Tribunal on 25 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, Mr David Kim, the Director of Green World Management Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

9. During the processing of the review the Tribunal received information from the Department that was covered by a certificate under s.376 of the Act. The information related to allegations from an unknown source that the applicant was not working for the company that is sponsoring her for a visa. The Tribunal exercised its discretion to disclose the nature of the information to the applicant at the hearing. The applicant strongly denied the allegations. There was also other substantial evidence before the Tribunal, including documentary evidence and Mr Kim’s oral evidence, which indicated that the applicant was employed by the nominating employer. The Tribunal considered the allegations to be largely unsubstantiated and inconsistent with other evidence before it. For these reasons, the Tribunal gives the information no weight. The Tribunal further notes that the information in the allegations is not relevant to the issue on which this case turned, which, as discussed below, relates to whether the nomination of the position has been approved.

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 relevant employer nomination has been approved.

    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. In addition, this criterion also requires that the nomination has been approved.

13. The applicant applied for the visa on the basis of an employer nomination lodged by Green World Management Pty Ltd (the associated nomination). The Tribunal is satisfied on the information before it that the associated nomination identified the applicant as the relevant Subclass 457 visa holder and that it was in reference to that nomination that the relevant declaration was made in the visa application, as required by cl.186.223(1).

14. Information in the decision record indicates that on 17 November 2016 the Department refused the associated nomination. The Department sent to the applicant a natural justice letter inviting her to respond on the refusal of the nomination. The Department did not receive a response and proceeded to refuse the application.

15. Green World Management Pty Ltd applied for review of the delegate’s decision not to approve the associated nomination. On 24 January 2019, the Tribunal affirmed the Department’s decision not to approve that nomination.

16. On 4 February 2019 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the Tribunal’s decision affirming the Department’s decision not to approve the associated nomination, which the Tribunal explained is relevant to the requirement in cl.186.223(2) which requires the relevant nomination to be approved. The review applicants did not respond.

17. The Tribunal notes that at the hearing it had discussed with the applicant the issue in the review and the applicant was on notice that if the associated nomination is not approved she would be unable to succeed in the review.

18. As the associated nomination has not been approved, it follows that the applicant does not meet the requirements of cl.186.223(2). Consequently, cl.186.223 is not met.

19. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

20. The secondary applicant applied for the visa on the basis of being a member of the first named applicant’s family unit. The first named applicant does not meet the primary requirements for the visa and there is no evidence before the Tribunal to suggest that the secondary applicant meet the primary requirements for the visa. In the circumstances, the Tribunal must also affirm the decision in respect of the secondary applicant.

    DECISION

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

    R. Skaros
    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.