Lee (Migration)

[2018] AATA 2687

Lee (Migration) [2018] AATA 2687 (19 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Minho Lee
Miss Sumi Choi
Mr Heewon Lee
Mr Jeewon Lee
Mr Yoowon Lee

CASE NUMBER:  1729837

DIBP REFERENCE(S):  BCC2016/3188361

MEMBER:Ian Berry

DATE:19 June 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 19 June 2018 at 11:41am

CATCHWORDS
Migration – Employer Nomination (Permanent) – Subclass 186 Employer Nomination Scheme – Subject of an approved nomination – Combined hearing of nominator and nominee – No capacity to employ – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2 cl 186.223, 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 9 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 26 September 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 (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 Agreement stream.

4. In the present case, the first named applicant (Mr Lee) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of sales and marketing manager. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because Mr Lee did not meet cl.186.223 of Schedule 2 to the Regulations. The related nomination application referred to in the visa application had been refused by the Department and as a result; the delegate found that Mr Lee did not meet cl.187.223[1].

   [1] NOTE: the Hearing of this matter and the nominator GH Medical Pty Ltd were heard together for 2 reasons. The Nominator’s sole director and shareholder was the nominee, the review applicant in this case file. The nominator’s file is 1723380. Secondly, documents on one case file were relevant to the other case file. It was fair to both applicants for all the evidence to be considered, notwithstanding as to how incoming documents were placed on a particular case file.

6. The Mr Lee and the secondary applicants appeared before the Tribunal on 7 June 2018 to give evidence and present arguments. Mr Lee gave evidence on behalf of himself and the secondary applicants.

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 is the standing of Mr Lee as to whether he is the subject of an approved nomination which has not been withdrawn: Cl.186.223.

   Nomination of a position

10. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

11. 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.

12. On 9 November 2017, a delegate of the Minister refused to approve the Nominator/employer’s nomination application where the nomination of the position related to Mr Lee’s visa application.

13. For that reason, the delegate found Mr Lee did not satisfy cl.186.223 and refused to grant the visa to him. The delegate then refused to grant the other visas on the basis that Mr Lee did not satisfy the primary criteria and did not hold the visa.

14. The Tribunal considered the evidence in the case files of the Department for approval of the nomination by GH Medical Pty Ltd and in the visa application case file. The Tribunal heard evidence from GH Medical Pty Ltd through its sole director and shareholder Mr Lee, and the nominee who was also Mr Lee. It was a combined hearing of both the nominator and the nominee.

15. On the application for review by the nominator GH Medical Pty Ltd, the Tribunal found that the nominator could not satisfy it had the capacity to employ a sales and marketing manager on $93,000 per annum for more than 2 years.

16. 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. It follows that the remaining applicant’s do not meet the requirements of cl.186.311 of Schedule 2 to the Regulations of being a member of the family unit of a person who holds a Subclass 186 visa.

    DECISION

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

    Ian Berry
    Member