Kim (Migration)

[2019] AATA 2971

Kim (Migration) [2019] AATA 2971 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Myunghee Kim
Mr Jun Mo Lee
Mr Hajun Lee
Miss Johee Lee

CASE NUMBER:  1705599

HOME AFFAIRS REFERENCE(S):          BCC2016/3735491

MEMBER:Mary Sheargold

DATE:17 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 17 May 2019 at 5:02pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Marketing Specialist – subject of an approved nomination – no discretion – nomination application refused – decision under review affirmed

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

CASES
Singh v MIBP [2017] FCAFC 105

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 17 March 2017 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 8 November 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.

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

6. The applicants appeared before the Tribunal on 17 May 2019 to give evidence and present arguments.   The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Nomination of a position

9. 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.

10. 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.

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

12. On 1 April 2019, the Tribunal affirmed the Department’s decision not to approve the nomination in respect of the applicant. Because there is no approved nomination, the Tribunal finds that the first named applicant cannot satisfy cl.186.223 of Schedule 2 to the Regulations.

13. At the hearing, the first named applicant told the Tribunal that she believed the nomination application was refused by the Department because she had taken unpaid leave from her role while she was the holder of a Subclass 457 visa, and told the Tribunal that she had medical complications arising in her first pregnancy that forced her to return to Korea to deliver her baby.  She stated that the Department never asked her or her nominating employer to explain why her income was not at the level it should have been according to her application, and that had she been given that opportunity to explain her circumstances, she could have avoided the refusal.

14. The first named applicant also told the Tribunal of unfortunate circumstances relating to the lack of response to the Tribunal’s letter sent pursuant to s.359(2) of the Act in relation to the nomination application by Robland Pty Ltd.  She stated that her former representative had failed to provide the request to her in a timely fashion, and that she was unable to acquire the documents requested by the Tribunal from her employer by the date requested due to her manager undergoing a series of personal hardships at that time.  The first named applicant told the Tribunal that she had had difficulty dealing with her former representative since the time the visa application was lodged due to the representative incurring disbursement costs on her behalf without her consent and that the relationship between them had been damaged.  She told the Tribunal that she received documents from her employer in support of the nomination application several days after receiving the Tribunal’s decision on that application.

15. The Tribunal noted the applicant’s submissions and informed the applicant that the basis for the Department’s decision on the nomination application was that it had not provided evidence to demonstrate that Robland Pty Ltd had the capacity to employ her full time as a Marketing Specialist for at least 2 years.  The Tribunal also noted that neither the first named applicant’s former representative, any representative from Robland Pty Ltd, nor the first named applicant herself had made any attempt to contact the Tribunal to seek an extension of time to provide materials in response to its letter sent to Robland Pty Ltd pursuant to s.359(2) of the Act.  The applicant accepted that no attempt had been made to contact the Tribunal prior to the Tribunal making its decision in relation to the nomination application.

16. As set out in paragraph 12 above, the Tribunal affirmed the Department’s decision not to approve the nomination. At the hearing, the Tribunal emphasised to the first named applicant that because there is no approved nomination, she cannot satisfy cl.186.223 of Schedule 2 to the Regulations, and that the Tribunal had no discretion to consider the first named applicant’s compelling circumstances.

17. The Tribunal notes that in reaching its finding, it has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) considered the mirroring provision in cl.187.233 of the Regulations in relation to the requirement to have an approved nomination and stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

18. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, she cannot overcome her current inability to meet cl.186.223 in relation to her application.  The nomination by Robland Pty Ltd was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

19. Therefore, cl.186.223(2) is not met.

20. 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.

21. Further, because the first named applicant is unable to satisfy cl.186.223(2), the secondary applicants are unable to satisfy cl.186.311 because they are not the members of a family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.  Therefore, the decisions in relation to the secondary applicants must be affirmed.

    DECISION

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

    Mary Sheargold
    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.