Kang (Migration)

[2020] AATA 838

Kang (Migration) [2020] AATA 838 (28 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Changmo Kang

CASE NUMBER:  1724196

HOME AFFAIRS REFERENCE(S):          BCC2016/4312390

MEMBER:De-Anne Kelly

DATE:28 January 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 28 January 2020 at 2:05pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook –nomination refused–not the subject of an approved nomination–tribunal affirmed nomination refusal –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, 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 18 September 2017 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 21 December 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(2)of Schedule 2 to the Regulations because a delegate of the Minister on the 25 July 2017 refused the employer nomination lodged by Grace Korean Church Incorporated trading as Grace Jako restaurant being the application referred to in cl.186.223(1)

6. The applicant appeared before the Tribunal on 28 November 2019 to give evidence and present arguments. This was a joint hearing of both the employer nomination refusal review and the visa application refusal review. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. During the hearing, the visa applicant did not request an adjournment at any time. The Tribunal asked on several occasions if the interpretation had been understood clearly and the applicants indicated that they had understood the interpretation.

7. The applicant was represented in relation to the review by his registered migration agent although the migration agent did not attend the hearing.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.186.223(2) which provides as follows:

   (2)      The Minister has approved the nomination.

   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. After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision. The Tribunal on the 7 January 2020 affirmed the decision under review to refuse the employer nomination on the basis that the nominator had failed to satisfy r.5.19(3) of the Regulations.

13. On 10 January 2020, the Tribunal, under s.359A of the Act sent Mr Changmo Kang an invitation through his appointed migration agent, to comment or respond to the information that the employer nomination review had been affirmed by the Tribunal. The letter stated that it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination and if the Tribunal relied on this information in making a decision, we may find that the position specified in their visa application is not the subject of an approved nomination. This would mean that they do not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review. The Tribunal advised that the comments or responses should be received by the 24 January 2020 or the applicant could request an extension of time before that date.

14. On the 24 January 2020, the applicant through their appointed migration agent sent a letter stating that he has now lived in Australia for ten years and has had inspiring and dispiriting experiences during that time. He feels at home in Australia because he has accepted the core values, culture and systems of Australia and has tried his best to handle his work and responsibilities while in Australia. He believes that immigration law should accept anyone who wants to live in Australia and who does not cause problems in society. He wishes these factors to be taken into account when the Tribunal makes a decision on his case.

15. The Tribunal has considered this submission carefully and understands that the applicant has a strong affinity towards Australia having lived here for ten years however the submission does not address the fact that there is not an approved employer nomination since the Tribunal has affirmed the refusal of the employer nomination.

16. Since the Tribunal has affirmed the employer nomination decision under review there is no approved employer nomination to satisfy cl.186.223(2) and the visa applicant, Mr Changmo Kang does not meet cl.186.223(2).

17. Therefore, cl.186.223 is not met.

18. 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.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    De-Anne Kelly
    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.