Yew (Migration)

[2019] AATA 5235

Yew (Migration) [2019] AATA 5235 (8 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Pey Shi Yew

CASE NUMBER:  1822307

HOME AFFAIRS REFERENCE(S):           BCC2017/3370385

MEMBER:Jennifer Cripps Watts

DATE:8 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 July 2019 at 11:08am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – employer’s nomination application refused – review of refusal withdrawn – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 (the delegate) on 12 July 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 September 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because she did not have an approved nomination.

6. On 2 August 2018, the applicant applied for review and provided a copy of the delegate’s decision to the Tribunal.  On 6 June 2019, the Tribunal invited the applicant to attend a scheduled hearing, on 8 July 2019.  The applicant responded to the invitation in writing, signed and dated 12 June 2019, indicating she would attend and did not require an interpreter.

7. On 13 June 2019, the Tribunal wrote to the applicant to inform her of adverse information, observing its obligations under s.359A of the Act.  The adverse information was, essentially, that the nomination refusal on review for Ipoh On York Pty Ltd (Ipoh), identifying the applicant in the occupation of Customer Service Manager, had been withdrawn on 29 March 2019.

8. On 21 June 2019, the applicant requested a hearing postponement because she is preparing a case with the Fair Work Commission and she has lodged a Subclass 309 partner visa application and is waiting for a decision.  The request for postponement included the applicant confirming she is aware the nomination has been withdrawn.  The applicant said if the partner visa is approved, she will withdraw her review application.  The Tribunal considered the request for postponement on both bases put forward.  No evidence was provided relating to the Fair Work matter.  In the case of the Subclass 309 partner visa, it can only be granted if the applicant is offshore and, in any event, it is not possible to say when or if it will be granted.  On 21 June 2019, the Tribunal informed the applicant that the postponement was not granted because neither of the issues, in the Tribunal’s view, were directly or materially relevant to her Subclass 186 visa review. 

9. The Tribunal has taken her request for postponement on 21 June 2019, in her circumstances, to be a response indicating she wanted to attend a hearing to give oral evidence about the adverse information, for the purposes of the s.359A letter.

10. In the letter advising the applicant that the postponement was not granted, the Tribunal reminded her that if she does not attend the hearing, her matter may be dismissed or a decision made on the review with the Tribunal seeking to obtain any further information from her.  On 26 June 2019, the applicant emailed the Tribunal and confirmed she would attend the hearing on 8 July 2019.

11. The applicant appeared before the Tribunal on 8 July 2019 to give evidence and present arguments.  She asked for her hearing to be held without others in the room and her request was granted.  Only the member, hearing officer and interpreter were present when she gave her oral evidence.

12. 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 applicant, relating to her Subclass 186 visa refusal on review before the Tribunal, is the subject of an approved nomination:  cl.186.223.  It is a mandatory requirement.  The Tribunal has no discretion to waive it. 

14. The applicant had informed the Tribunal that she was considering lodging a complaint with the Fair Work Commission because, essentially, she had been bullied by the HR manager at her previous place of employment (the nominator’s HR manager, who the applicant said commenced employment there in 2017).  She said she had worked for the sponsor from January 2012 to July 2018 and had worked very hard, helping them to build up their foundation and the business.  The applicant said she had decided to abandon the idea of pursuing a case with Fair Work as it was not her previous boss or the company but just this one person who had caused problems and she is mindful that she does not want to cause problems for the previous sponsor’s company. 

15. The applicant also gave oral evidence about her Subclass 309 partner visa application.  She said her partner, the sponsor, is an Australian citizen, Jonathan Soo, they have known each other for about four and a half years, and commenced a relationship in 2017.  She said he used to live with his parents in Roseville, but that now they are in a relationship, the applicant and Mr Soo have moved in together at [address].  The applicant said that she thinks partner visa the application is currently being assessed because her migration agent told her that the Department had requested additional information.  The applicant confirmed that she lodged the Subclass 309 visa application offshore, in New Zealand, in February 2019, and that she is aware that she will need to be offshore when or if it is granted.

16. While the Tribunal acknowledges the matters relating to the HR manager at the applicant’s previous place of employment, with her former sponsor, and the 309 visa application, they are matters that are not considered relevant to the question of whether she has an approved nomination relating to the Subclass 186 visa refusal that is the subject of the review.

    Nomination of a position

17. 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. It is requirement, among other things, but relevant to this matter, that the nomination has been approved and has not been subsequently withdrawn.  In the nomination application, 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.  This was explained in detail to the applicant at the hearing and she was told that without a nomination in which she had been identified in the occupation, she cannot meet the criteria for the grant of the Subclass 186 visa that is the subject of this review.

18. The applicant has confirmed in writing that she is aware that the nomination refusal on review for Ipoh was withdrawn (on 29 March 2019).  She confirmed this in her oral evidence at the Tribunal hearing as well.

19. On the evidence, there is no nomination relating to the applicant’s Subclass 186 visa refusal on review.

20. Therefore, cl.186.223 is not met.

21. Given these findings, the decision under review is affirmed.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Jennifer Cripps Watts
    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.