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(Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – nomination withdrawn – applicant ceased employment – decision under review affirmed  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

1. 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).

2. 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).

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) sought the visa in Temporary Residence Transition stream, to work in the nominated position of Travel Agency Manager (ANZSCO code 142116).

5. 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.

6. 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 appointed a registered migration agent, Mr Max Moon, to act as their representative and authorised recipient for correspondence.

7. On 30 November 2018, the Tribunal wrote to the applicants, via their agent, to advise that it appeared that the nomination for the position identified in the applicant’s visa application was not approved, and that a decision to refuse to approve a nomination application relating to the applicant was not under review. The Tribunal noted that if the nomination for the position identified in the applicant’s visa application was refused and there was no pending review, then the decision to refuse to grant the applicant a subclass 186 visa would have to be affirmed. The Tribunal further noted that lodging a new nomination application would not enable the applicant to satisfy cl.186.223.  The applicant were asked to provide evidence of whether the applicant was the subject of an approved nomination or that there was a pending nomination review, or alternatively, to indicate if they would withdraw their review application.

8. The Tribunal did not receive a response to its letter.  On 22 January 2019, it wrote again to the applicants, via their agent, to invite them to a hearing on 15 February 2019. They were asked to confirm their attendance and to provide any submissions and/or documents in support of their case as soon as possible.

9. On 24 January 2019, the applicants’ agent provided a hearing response indicating that he and the applicants would attend the hearing.

10. On 14 February 2019, the applicants’ agent provided a scanned copy of a medical certificate for the applicant, issued 13 February 2019, stating that he was unfit to attend ‘court hearing’ on 15 February 2019.  The agent asked that the hearing be rescheduled.

11. On 14 February 2019, the Tribunal wrote to the applicants, via their agent, acknowledging the request to reschedule the hearing. The Tribunal advised that the hearing had been rescheduled to 16 April 2019.  It reiterated its request that submissions and/or documents be provided prior to the hearing. It also stated that the new hearing date would not be rescheduled or adjourned unless there were compelling reasons. Specifically, the Tribunal noted that any medical certificate provided to support a further request for a rescheduling must specify the nature and duration of the condition(s), and why it or they would prevent the applicant from attending – either in person or by telephone – a hearing anticipated to last approximately 30 to 45 minutes.  The letter noted that failure to attend, in the absence of the Tribunal agreeing to postpone the hearing – could result in the Tribunal making its decision on the available evidence without scheduling a new hearing, or the Tribunal dismissing the application for review (in which case, the applicants would have to apply for it to be reinstated).

12. On 20 February 2019, the applicants’ agent provided a hearing response indicating that he and the applicants would attend the rescheduled hearing.

13. On 12 April 2019, the applicants’ agent submitted another medical certificate, issued to the applicant on 11 April 2019, stating that he is ‘unfit to attend court hearing on 16/4/19.’  He asked that the hearing be rescheduled.

14. On the same date, a Tribunal officer acting at the direction of the presiding Member contacted the applicants’ agent to advise that the Presiding Member had considered the request but declined to reschedule the hearing a second time, given that the medical certificate provided did not address the issues specified by the Tribunal in its second hearing invitation letter. The Tribunal officer indicated that the hearing would therefore proceed as scheduled but indicated that the Presiding Member was agreeable to conduct it by telephone if this was more convenient for the applicants.

15. On 15 April 2019, the applicants’ agent advised the Tribunal that they would participate in the hearing by telephone.

16. The applicants participated in a telephone hearing with the Tribunal on 16 April 2019. The Tribunal also received oral submissions from the applicants’ agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

17. The applicants’ agent was not available on either of his provided numbers at the commencement of the hearing.  Part way through the hearing, he made contact with the Tribunal and was included in the telephone hearing. At the end of the hearing, the Tribunal provided additional time for him to make any further written submissions that he wished to make by 26 April 2019.

18. The applicant told the Tribunal that he initially started working for Abella Pty Ltd (‘Abella’) in 2013. By June 2016, he wanted to apply for permanent residence, but there were problems with Abella, as it was subject to a 3 year bar on sponsoring or nominating employees.  The Department sent the applicant an email advising him of this on 9 March 2017, and noting that it might be grounds to refuse his visa application. However, on 28 April 2017, he was advised by the Department that the bar had been waived and he could apply for a subclass 186 visa. He therefore did so, including his family members as his dependents, on 18 May 2017. 

19. The applicant said that he had been advised by his lawyer at the time that the sponsorship issue with Abella had to be resolved first, and then the visa application. He told the Tribunal that he called the Department on 20 June 2017 about the progress of Abella’s nomination of him for permanent residence, and was told that it was being processed. His lawyer called several times after this, but got the same response. Neither of them received any further information until August 2018. The applicant said that after making a number of inquiries about progress, he elected to stop contacting the Department and just await the outcome. However, it took a very long time for the Department to make a decision on the nomination. Due to this delay, the applicant said that he felt that it was untenable for him to continue in his role at Abella, given his uncertain visa status.  He said that he ceased working there in October 2017.

20. He found out only in July 2018 that Abella had withdrawn its nomination of him for permanent residence. He told the Tribunal that he found out via his agent at the time, who received a letter from the Department advising him that Abella had withdrawn its nomination. The applicant said that he then contacted Abella himself, and it was confirmed. The applicant said that Abella’s business had declined significantly since he stopped working there and he was told that it could not continue its nomination of him as it was likely it would be closing down altogether. The applicant said that he felt that there was little he could do to persuade them to continue the nomination under the circumstances.

21. The applicant noted that his visa was refused very shortly after this, despite the fact that it took the Department over 2 years to process Abella’s nomination, causing him and his family (and Abella) uncertainty and financial and emotional stress. He queried why the nomination assessment took so long, particularly as the Department waived the bar on Abella in March or April 2017. The applicant said that he was also concerned about the discrepancy between his Employer Nomination Scheme visa application and visa applications made under the Regional Sponsored Migration Scheme, as he had heard that the latter were protected (that is, they could still be given visas) even if the nominating employer was no longer nominating them. The Tribunal noted that, as it was a separate entity to the Department, it could not provide the information as to why the Department’s processing of the nomination took over 2 years, although it speculated that this may have been partly due to the sponsorship bar issue, and partly to the workload of the Department in this category. In relation to any difference in sponsorship/nomination requirements between the ENS and RSMS permanent residence visa categories, the Tribunal said that both of these required an approved nomination by the original employer in order to be granted.

22. The applicant told the Tribunal that he had worked for Abella from 2013 to October 2017. At first, the business grew successfully and significantly in the period 2013 to 2016, in part due to the applicant’s commitment to his role as Travel Agent Manager, but by 2017, it was beginning to decline and by 2018, the business had significantly decreased. The applicant said that this could at least partially be attributed to the uncertainty hanging over the business and him due to the lengthy nomination and visa processing times. In response to the Tribunal’s query, the applicant said that after he left Abella, he was reliant for a period on his wife’s part time earnings (she works part time as a nurse), but it was difficult for him and the family to meet living expenses, pay for his children’s education in Australia and to remit money to his parents in South Korea, as he was culturally expected to do. The applicant said that he then opened his own travel business, which focussed not just on driving tours but on hiking with groups.  He was still running this business. The applicant indicated that he would like to expand this business, and believed that he could do so, but that he would require a loan, and family members were not in a position to offer him one.

23. The applicant queried whether his subclass 186 visa application could be successful if Abella reinstated its nomination of him, or if he was nominated by a new employer. The Tribunal stated that its legal view was that cl.186.223 was very stringent, and specifically linked the required approved nomination of him with the one made to the Department at the time of the visa application; that is, that only Abella’s original nomination could satisfy cl.186.223, and this had been withdrawn in July 2018.  The Tribunal indicated that its legal view was that this nomination could not be reinstated now, nor would a new nomination by Abella (or another employer) satisfy cl.186.223. It suggested that he discuss any potential future visa options with his current agent.

24. In response to the Tribunal’s query, the applicant said that he is generally in good health, but has suffered some lower back pain due to long hours of driving and hiking involved in his business. He confirmed that his wife is working part time as a nurse, that his daughter is in the final year of a nursing degree and that his son will shortly commence an accounting degree in July 2019. The applicant reiterated that the whole visa and nomination process had been time-consuming and financially and psychologically stressful for him and his family.

25. The applicants’ agent asked the Tribunal to take into account the fact that the applicants were of good character, were well integrated into the Australian community, and that the nomination of the applicant was withdrawn by his employer, which was outside his control.

26. At the conclusion of the hearing, the Tribunal agreed to defer its decision until 26 April 2019 to enable the applicant’s agent to make submissions on the Ministerial Intervention power contained in s.351 of the Act. In the event, no further submissions were received by that date, and no further submissions have been provided to date.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. The Tribunal considers that although the Court's comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas.

34. As the relevant subclass 186 criteria are in the same terms, the Court's reasoning is also applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is withdrawn, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable).

35. Moreover, this view is consistent with the view taken in another decision, Kaur v Minister for Immigration and Border Protection [2017] FCCA 564, in which the Court cited with approval the previous case of Hasan v Minister for Border Protection [2016] FCCA 1049, to the effect that the nomination relied upon to satisfy cl.187.233 must be the one which had been made at the time of the visa application and could not be a later nomination, even if the later nomination were made by the same employer in relation to the same position as the nomination made at the time of the visa application.

36. In addition, the Tribunal notes that legislative changes took place on 18 March 2018 which also affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as is the case here.

37. Given the above, the Tribunal finds that the applicant does not meet cl.186.223.

38. 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 in relation to him.

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

1. The Tribunal notes that the applicants’ agent raised the possibility of the applicants making requesting Ministerial intervention pursuant to s.351 of the Act in the event that their review application is unsuccessful. This section provides the Minister with a non-compellable person discretion to intervene to make a more favourable decision if the Minister thinks that it is in the public interest to do so. There are guidelines as to what the Minister considers to be unique or exceptional circumstances, and what the Minister considers to be inappropriate to consider for intervention, on the Department's website at: >

   While the Tribunal has sympathy for the protracted processes that the applicants have undertaken to try to obtain permanent residence, which appear to have largely failed due to issues with the applicant's employer, and while it acknowledges that the applicants have been living in Australia for some years now, it is not persuaded that it is appropriate to refer their case to the Minister at present, as it has insufficient evidence on which to determine whether the applicants fall within the above Ministerial guidelines.

2. However, it remains open to the applicants to do so directly, if they wish to do so.

   DECISION

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

   Alison Mercer
   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.