Lee (Migration)

[2019] AATA 915

Lee (Migration) [2019] AATA 915 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dongheon Lee
Miss Hae Suk Kim
Miss Jong Eun Lee
Mr U Hyeon Lee

CASE NUMBER:  1820777

HOME AFFAIRS REFERENCE(S):           BCC2017/2328343

MEMBER:R. Skaros

DATE:18 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 March 2019 at 2:28pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Importer or Exporter – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 26 June 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 30 June 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) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Importer or Exporter with Eagon Australia Pty Ltd.  

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 the nomination of the position made by Eagon Australia Pty Ltd was not approved.

6. The applicant provided a copy of the delegate’s decision record which indicates that the nomination of the position in relation to the applicant was refused by the Department on 25 May 2016.

7. On 6 December 2018, the Tribunal wrote to the applicants noting that the nomination for the position had not been approved and requesting the applicant to provide information as to whether the relevant nomination has been approved or whether there is a pending application for review of the decision not to approve the nomination. The applicants did not respond to the Tribunal’s general request for information.

8. On 25 February 2019, the Tribunal wrote to the review applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicants to give evidence and present arguments at a hearing on 12 March 2019 at 9:30 am. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

9. No response to the hearing invitation was received and the applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with  s.379A(5), the invitation has not been returned to sender, and that SMS reminders were sent about the hearing on two separate occasions. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

10. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the nomination of the position has been approved.

    Nomination of a position

13. 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.

14. The applicant applied for the visa on the basis of an employer nomination made by Eagon Australia Pty Ltd in which he was identified as the relevant 457 visa holder. Information in the decision record, a copy of which was provided to the Tribunal, indicates that the Department refused to approve the associated nomination on 25 May 2016.

15. There is no evidence before the Tribunal which indicates that the refusal of the associated nomination has been revoked or set aside on review. The applicants were requested to provide information about the associated nomination and whether it has been approved or is the subject of a pending review, but no response was received. The applicants also did not appear before the Tribunal.

16. On the evidence before it, the Tribunal finds that the relevant nomination has not been approved. It follows, that the applicant does not satisfy the requirement in cl.186.223(2). Therefore, cl.186.223 is not met.

17. 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.

18. The secondary applicants applied for the visa on the basis of being members of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

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

    R. Skaros
    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.