Lee (Migration)

[2019] AATA 5317

Lee (Migration) [2019] AATA 5317 (26 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Byung Haak Lee
Ms Woon Kyung Na
Mr Yongje Lee
Miss Chaerin Lee

CASE NUMBER:  1727476

HOME AFFAIRS REFERENCE(S):          BCC2016/2746173

MEMBER:K. Chapman

DATE:26 November 2019

PLACE OF DECISION:  Brisbane

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

·cl.186.233 of Schedule 2 to the Regulations.

Statement made on 26 November 2019 at 8:01am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry scheme – subject of approved nomination – employer’s position nomination refused – refusal set on review – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 7 November 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 19 August 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 (hereafter ‘the applicant’) is seeking the visa in the Direct Entry stream, to work in the nominated position of Chief Executive or Managing Director (ANZSCO Code 111111). This position was nominated by CJ ACT Pty Ltd (‘the nominator’).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 which required him to be the subject of an approved nomination by the original nominating employer, which has not been withdrawn and with the position still being available to him. The delegate found that the nomination made by the nominator had been refused on 5 September 2017. Additionally, the second, third and fourth named applicants were refused the visa given they were not a member of the family unit of a person who met the primary visa criteria and there was no evidence that they met the primary visa criteria in their own right.

6. On 7 November 2017, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application for review. The applicant appeared before the Tribunal on 15 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The Tribunal accepts that the applicant provided truthful evidence. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Nomination of a position

9. 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.

10. Further, 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.

11. The applicant gave oral evidence to the Tribunal indicating that he is genuinely employed by the nominator in the role of Managing Director and that they continue to require his services. He has been so employed since 2014. The applicant stated that he will remain employed by the nominator for at least the next two years, adding that the nominator has the financial capacity to maintain his employment. The Tribunal accepts the oral evidence of the applicant.

12. On 25 November 2019, the Tribunal set aside the Department's decision concerning the application for nomination and substituted a decision to approve the nomination in respect of the nominator under r.5.19(3) (see AAT matter 1722071). The evidence before the Tribunal indicates that the original nominator will still employ the applicant in the position and proceed with the nomination, in addition to the visa application having been made within the requisite time frame. Further, there is no evidence of adverse information in relation to the nominator. Therefore, cl.186.233 is met by the applicant.

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

14. The Tribunal finds that as the second, third and fourth named applicants applied for the visa on the basis of being a family unit member of the applicant, their application will be determined by reference to the outcome of the latter’s application on remittal to the Department for reconsideration.

    DECISION

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

    ·cl.186.233 of Schedule 2 to the Regulations.

    K. Chapman

    
    

    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.