Chan (Migration)

[2019] AATA 3967

Chan (Migration) [2019] AATA 3967 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yee Ting Chan
Mr Gwijung Kim

CASE NUMBER:  1716287

HOME AFFAIRS REFERENCE(S):           BCC2016/2078816

MEMBER:De-Anne Kelly

DATE:23 August 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 23 August 2019 at 11:54am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Accommodation and Hospitality Managers – tribunal affirmed nomination application – not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, r 5.19, Schedule 2, cls 187.233, 187.311

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 June 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Accommodation and Hospitality Managers nec (ANZSCO 141999).

5. The delegate refused to grant the visas because the applicant did not meet cl. 187.233(3) of Schedule 2 to the Regulations because on 18/05/2017 a delegate of the Minister for Immigration and Border Protection refused the nomination lodged by JS BUNDY PTY LTD. This is the nomination referred to in paragraph 187.233(1) a copy of which is extracted in the attachment to this decision. The applicants appeared before the Tribunal on 29 May 2019 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets cl 187.233(3) which provides as follows;

   187.233

   (3) The Minister has approved the nomination.

   After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision. The Tribunal affirmed the decision under review to refuse the nomination on the basis that the nominator had failed to satisfy r.5.19(4) of the Migration Regulations 1994.

9. On the 25 July 2019, the Tribunal wrote to the review applicants Ms Yee Ting Chan and Mr Gwijung Kim through their registered migration agent and under s.359A of the Migration Act and invited them to comment or respond to certain information which may the reason or part of the reason for affirming the decision under review. The information was that the refusal of the nominated position by JS Bundy Pty Ltd had been affirmed by the Tribunal and if the Tribunal relied on this information in making a decision, the Tribunal may find that the position specified in the visa application is not the subject of an approved nomination. This would mean that the review applicants would not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision under review. The review applicants were advised that they should respond by the 8 August 2019 and they could request an extension of time.

10. On the 5 August 2019 the review applicant Ms Yee Ting Chan through her registered migration agent, applied for an extension of time of two weeks to respond as she was taking her child overseas until the 21 August 2019. The agent requested this extension given the complexity and hardship laid on the applicant and her family.

11. On the 6 August 2019, The Tribunal having carefully considered the request granted an extension of time such that Ms Yee Ting Chan’s comments and response must be received by the 22 August 2019 or the Tribunal may make a decision on the review without taking any further action to obtain her views.

12. To the present day 23 August 2019, there have been no further communications, other than the request for an extension of time on the 5 August 2019, from the review applicant Ms Yee Ting Chan and the Tribunal has not received comments or a response from Ms Yee Ting Chan to the information forwarded on the 25 July 2019. The Tribunal has not received any telephone calls from the review applicant Ms Yee Ting Chan or her migration agent since the invitation was sent on the 25 July 2019.

13. The Tribunal considers that the review applicants Ms Yee Ting Chan and Mr Gwijung Kim have had a fair and just opportunity to comment or respond to the invitation given by the Tribunal under s.359A of the Migration Act. The Tribunal will now proceed to making a decision on the review application.

14. Since the Tribunal has affirmed the decision under review there is no approved nomination to satisfy cl 187.233(3) and the visa applicants therefore do not meet cl 187.233(3).

15. Therefore, cl.187.233 is not met.

16. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

17. Mr Gwijung Kim was a secondary applicant on the application for a Regional Sponsored Migration Scheme (subclass 187) visa and sought to satisfy cl. 187.311 of Schedule 2 to the Migration Regulations 1994. On the 13 July 2017, a delegate of the Minister refused the visa application of Mr Gwijung Kim on the basis he did not satisfy cl.187.311. Mr Gwijung Kim lodged an application with the Tribunal to review the decision to refuse the visa application. This clause provides as follows;

    187.311
    The applicant:
    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and
    (b) made a combined application with the primary applicant.

18. Mr Gwijung Kim, the secondary applicant, applied as the husband and a member of the primary applicant Ms Yee Ting Chan. However, the Tribunal has affirmed the decision not to grant the primary applicant, Ms Yee Ting Chan a Regional Sponsored Migration Scheme (subclass 187) visa. Therefore, Ms Yee Ting Chan is not a person who holds a Subclass 187 visa. Mr Gwijung Kim is a member of the family unit of a primary applicant who does not hold a Subclass 187 visa. Mr Gwijung Kim therefore does not satisfy cl 187.311(a) and does not satisfy r. 187.311.

19. The secondary applicant Mr Gwijung Kim does not meet r.187.311 and the Tribunal affirms the decision not to grant Mr Gwijung Kim a Subclass 187 visa.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    De-Anne Kelly
    Member

    
    

    ATTACHMENT A

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)      The position is still available to the applicant.

    (6)      The application for the visa is made no more than 6 months after the Minister approved the nomination.