Woo (Migration)

[2020] AATA 1230

Woo (Migration) [2020] AATA 1230 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kyungjun Woo
Ms Eunjin Hwang

CASE NUMBER:  1827998

HOME AFFAIRS REFERENCE(S):          BCC2017/2045274

MEMBER:Penelope Hunter

DATE:14 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 April 2020 at 5:02pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – subject of an approved nomination – late response to s 359A invitation – not entitled to appear before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES

Hasran v MIAC [2010] FCAFC 40

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 5 September 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 9 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 the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager by Sushi Revolution Pty Ltd. The second named applicant is his partner and has sought the visa as a member of his family unit.

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 lodged by the applicant’s nominated employer was refused by Department on 27 July 2018.

6. The Tribunal received an application for review of the delegate’s decision on 24 September 2018. The applicants were represented in relation to the review by their registered migration agent.

7. On review, the Tribunal conducted search of its records to determine whether there was any valid application for review of the Department decision to refuse the nomination lodged by the applicant’s nominated employer, Sushi Revolution Pty Ltd.

8. On 16 March 2020, the Tribunal wrote to applicant and second named applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related the Tribunal records that it was found to have no jurisdiction in relation to the application for review of the Department’s decision to refuse the nomination by Sushi Revolution Pty Ltd. Further that there was no record that Sushi Revolution had sought a further review of that decision. The Tribunal explained the relevance of the information and informed the applicants that if it relied on the information that it may find that the relevant nomination had not been approved and that the applicant may not be able to meet the requirements of cl.186.223(2).

9. The invitation was sent to the representative of the applicants at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 30 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. On 6 April 2020, the applicant’s representative wrote to the Tribunal stating that he had received an email from the applicant who said that he had returned to Korea with his wife. Therefore, the applicants would not be able to attend a Tribunal hearing. This response from the applicant’s representative was received outside the timeframe provided in the Tribunal’s s.359A.

11. The Tribunal is satisfied that the invitation was properly sent to the applicants’ authorised recipient. The invitation informed the applicants that the comments had to be provided in writing by 30 March 2020. The applicants had not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

12. In the circumstances, the Tribunal has decided to proceed to decision on the information before it.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the nomination associated with the applicants’ visa application has been approved.

    Nomination of a position

14. 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. Furthermore, the position must still be available to the applicant: cl.186.223(4). 

15. The applicant applied for the visa on the basis of a nomination of a position made by Sushi Revolution Pty Ltd. As set out in the delegate’s decision record, submitted by the applicants to the Tribunal, the Department refused the nomination application made by Sushi Revolution Pty Ltd on 27 July 2018.

16. Sushi Revolution Pty Ltd applied to the Tribunal for a review of the Department’s decision to refuse the nomination. On 6 December 2019, the Tribunal determined it had no jurisdiction in relation to that application. The applicants did not provide any information to the Tribunal to dispute this fact. On the evidence before the Tribunal it finds that the relevant nomination for the current visa application has not been approved. It therefore follows that the applicant does not meet cl. 186.223(2) and cl. 183.223 of Schedule 2 to the Regulations has not been met as a whole.

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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

18. As the second named applicant applied for the visa as a member of the applicant’s family unit because the applicant does not meet the primary requirement for the visa and there is no evidence to suggest that the second named applicant meet the primary requirement for the visa. In the circumstance the Tribunal also affirms the decision in respect of the second named applicant.

    DECISION

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

    Penelope Hunter
    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.