Lee (Migration) - [2019] AATA 3527

Lee (Migration) [2019] AATA 3527 (17 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Wonsang Lee
Ms Soonyoung Park
Mr Donghoon Lee
Ms Sojung Lee
CASE NUMBER:  1827111
HOME AFFAIRS REFERENCE(S):           BCC2017/1769557
MEMBER:Alison Mercer
DATE:17 June 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 June 2019 at 3:45pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – nomination withdrawn – applicant ceased employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 186.223, 186.233
CASES

Kaur v Minister for Immigration and Border Protection [2017] FCCA 564

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 18 May 2017. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).
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.
In the present case, the first named applicant (the applicant) sought the visa in Temporary Residence Transition stream, to work in the nominated position of Travel Agency Manager (ANZSCO code 142116).
The delegate refused to grant the visas because she found that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by the Australian employer who had nominated him originally. The delegate found that the applicant’s nominating employer, Abella Travel Pty Ltd (‘Abella’), withdrew its nomination of him on 31 July 2018, and thus he could not satisfy cl.186.223. The delegate also refused to grant the second to fourth named applicants (the applicant’s wife and children) subclass 186 visas, as she found that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence to indicate that they met the primary visa criteria in their own right.
The Tribunal received a review application from the applicants on 17 September 2018. It was accompanied by a copy of the delegate’s decision and an authority by which they…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lee (Migration)

Details

AGLC: Lee (Migration) [2019] AATA 3527
Case: [2019] AATA 3527
Decision Date: 17 June 2019

CaseChat Overview and Summary

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa, Temporary Residence Transition stream, by an applicant whose employer, Abella Travel Pty Ltd, had withdrawn the nomination. The decision under review, which affirmed the refusal of the visa, was brought before the Tribunal for reconsideration.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically subclauses (2) and (3), which stipulate that the employer's nomination must have been approved and not subsequently withdrawn. The Tribunal also considered whether the applicant's circumstances, including the withdrawal of the nomination being outside their control, could permit a different outcome.

The Tribunal reasoned that the withdrawal of the nomination by the employer on 31 July 2018 meant that the applicant was no longer the subject of an approved nomination. Consequently, the applicant failed to meet clause 186.223(2) and (3). The Tribunal held that it had no discretion to consider the applicant's reasons for the withdrawal, as the criterion refers to a factual event. This interpretation was supported by the Federal Court's reasoning in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, which dealt with a similar criterion for a Subclass 187 visa, emphasizing that a new nomination would not relate to the original declaration made in the visa application.

The Tribunal affirmed the decision not to grant the visa. It noted that it remained open to the applicant to make a new application directly if they wished.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCENomination of a position 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 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. As set out in the delegate’s decision (a copy of which was provided to the Tribunal with the review application), the nomination of the applicant for a subclass 186 visa made by the applicant’s employer, Abella Travel Pty Ltd, was withdrawn by that employer on 31 July 2018. Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination by Abella Travel Pty Ltd. Under the circumstances, the Tribunal must find that the applicant does not meet cl.186.223(2) or (3) and thus does not meet cl.186.223 as a whole. As discussed with the applicants at hearing, the Tribunal has no discretion under the law to take into account the circumstances alleged by the applicant (that is, that the nomination was withdrawn by the employer for reasons outside the applicant’s control) to reach a different conclusion. There is no evidence that the applicant is the subject of an approved nomination by another employer, and even if he were, the Tribunal’s view is that this would not satisfy cl.186.223. This was the view taken in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the 'position' referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

Decision

Reasons for decision

However, it remains open to the applicants to do so directly, if they wish to do so.DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.Alison MercerMemberATTACHMENT A186.223(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.

Ratio Decidendi

Legal Principle Established

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