Kim (Migration)

[2018] AATA 5575

Kim (Migration) [2018] AATA 5575 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sangwoo Kim
Ms Dongsook Kim
Mr Chanhee Kim
Miss Eunhye Kim

CASE NUMBER:  1614299

HOME AFFAIRS REFERENCE(S):           BCC2015/2654797

MEMBER:Ian Berry

DATE:29 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 29 November 2018 at 2:34pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Web Administrator – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.233, 186.311

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 31 August 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 11 September 2015. 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 the Direct Entry stream, to work in the nominated position of ‘Web Administrator’ ANZSCO 313113.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(3) of Schedule 2 to the Regulations because the applicants did not have an approved nomination.

6. The applicants appeared before the Tribunal on 27 November 2017 to give evidence and present arguments. The Tribunal received oral evidence from the applicant. 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 decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case iswhether the applicants have an approved nomination pursuant to cl.186.223(3).

   Nomination of a position

10. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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. On 27 September 2018, the Tribunal wrote to the applicant’s pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse the applicants’ subclass 186 visa application. The Tribunal informed the applicant’s that it had affirmed the Department’s decision to refuse the nomination application made by the nominator Tempmaster Pty Ltd identifying the first named applicant as the nominee. As a result, the position to which the applicants’ subclass 186 visa application relates could not meet criteria in cl.186.223(3) of Schedule 2 to the Regulations.

13. The Tribunal’s letter to the applicants was sent to the migration representative who lodged their review application with the Tribunal.  The applicants were requested to provide any comments or response to the information in the Tribunal’s letter on a before 11 October 2018.

14. Neither the migration representative nor the applicants (or either of them) provided any response to the tribunal’s s.359A letter, s.359C of the Act applies and, pursuant to s.360(3) of the Act,

15. On 27 September 2018, the Tribunal wrote to the applicants pursuant to section 359A of the Act to comment on / respond to certain information before it, namely that the application for approval of the nominated position made by nominator Tempmaster Pty Ltd was refused by the delegate of the Minister for immigration and the subsequent review application before the Tribunal was affirmed. As such the nomination for the position of Web Administrator ANZSCO 313113 had not been approved.

16. The Tribunal invitation stated that this information was relevant to the review because the Regulations required the applicants’ visa application to be subject of an approved nomination and, if it made this finding, the Tribunal would have no alternative other than to affirm the decision under review.

17. This invitation also specifically stated that the Tribunal must receive the applicants’ comments /response, or any request for an extension of time in which to do so, by 11 October 2018,

18. It is noted by the Tribunal that to the applicant’s did have the benefit of representation from a registered migration agent to assist with the review application.  Neither the applicant’s nor their representative provided comments on or respond to information within the prescribed period is set out for this purpose.

19. The Tribunal had regard to the visa application had been refused by the Department on 1 August 2016 because the applicants did not meet cl.186.223 of Schedule 2 to the Regulations. This clause, among others, requires the Minister to have approved the nomination. The applicants submitted a copy of the primary decision record with the review application. Accordingly, the applicants were aware of the reasons for the visa refusal for more than 12 months.

20. In the circumstances of this case, the Tribunal considers the applicants have had sufficient time to address the central issue arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.

21. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments on or response to information contained in the Tribunal’s letter of 27 September 2018.

22. The Minister’s delegate refused the nominator’s application on 1 August 2016.  That decision was reviewed by the Tribunal which affirmed the delegate’s decision on 5 September 2018. Therefore, the applicants do not have an approved nomination.

23. Therefore, cl.186.233 is not met.

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

25. The Tribunal must also affirm the decision not to grant the second third and fourth named applicant’s subclass 186 visas as it finds that they do not meet the secondary visa criteria in cl.186.311 to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence before the Tribunal to suggest that they meet the primary visa criteria in their own right.

    DECISION

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

    Ian Berry
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)      The position is still available to the applicant.

    (6)      The application for the visa is made not more than 6 months after the Minister approved the nomination.