PARK (Migration)

[2019] AATA 2383

PARK (Migration) [2019] AATA 2383 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Young-Hwan Park
Mrs Mihwa Park
Miss Danbi Park
Miss Eun Bi Park
Master Jeremy Park

CASE NUMBER:  1800358

HOME AFFAIRS REFERENCE(S):           BCC2017/2224724

MEMBER:Wan Shum

DATE:16 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 16 April 2019 at 4:11pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – no approved nomination – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 186.223; rr 1.13, 5.19

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 15 December 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 186 visas on 23 June 2017.

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 the Temporary Residence Transition stream, in relation to a nomination that JW Maintenance Pty Ltd. The nomination application was refused by the department on 13 November 2017.

5. As a consequence, there was no approved nomination in respect of the first named applicant and he did not satisfy cl.186.223 of Schedule 2 to the Regulations. The delegate refused to grant the visas.

6. The applicants sought review of that decision and were represented in relation to the review by a registered migration agent. JW Maintenance Pty Ltd had also sought review in respect of the decision not to approve the nomination. On 19 March 2019, the Tribunal dismissed the application when the nominator did not appear before it at a scheduled hearing. On 9 April 2019, the Tribunal confirmed the dismissal of the application for review of the decision not to approve the nomination, and in those circumstances, it is taken to be affirmed.

7. The Tribunal wrote to the applicants in respect of this information, inviting their comments or response. The Tribunal received an email from their representative indicating that they were aware of the dismissal and that they knew that their matter would be dismissed as well. The representative has advised that in these circumstances, the applicants wanted the Tribunal to proceed to a decision.

8. The Tribunal has proceeded on this basis and, for the following reasons, it has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the position to which the visa application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream. That approval needed to have identified the applicant for the position 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.

10. 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.

11. The applicant was identified in a nomination application made by JW Maintenance Pty Ltd under the Temporary Transition Stream (r.5.19(3)). This was the position that was the subject of the declaration that was required to be made as part of the visa application. The nomination application was refused by the department on 13 November 2017, and the Tribunal dismissed the application when the nominator did not appear before it at a scheduled hearing. On 9 April 2019, the Tribunal confirmed the dismissal of the application for review of the decision not to approve the nomination, and in those circumstances, the matter was taken to be affirmed.

12. As the nomination has not been approved, cl.186.223(2) is not satisfied and cl.186.223 is not met.

13. The first named 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.

    DECISION

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

    Wan Shum
    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.