Cho (Migration)

[2021] AATA 3839

Cho (Migration) [2021] AATA 3839 (22 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Junlae Cho
Mrs Jae Lim Jeon
Miss Yoojin Cho
Miss Hye Rin Cho

CASE NUMBER:  1826446

HOME AFFAIRS REFERENCE(S):          BCC2017/2321257

MEMBER:W Frost

DATE:22 September 2021

PLACE OF DECISION:  Canberra

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

Statement made on 22 September 2021 at 9:56am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Aquaculture Farmer – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; rr 1.13, 5.19

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 27 August 2018 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (Act).

2. The applicants applied for the visas on 29 June 2017. 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 (Cth) (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, Mr Junlae Cho (Applicant) is seeking the Regional Employer Nomination (Permanent) (Class RN) visa in the Direct Entry stream, to work in the nominated position of ‘Aquaculture Farmer’ (ANZSCO 121111) with the nominating business, ‘Australian Coral Coast Mariculture Pty Ltd’ (Nominator). The related nomination for the position was also made on 29 June 2017.

5. On 27 August 2018, the delegate refused to grant the visas because the Applicant did not meet cl 187.233 of Schedule 2 to the Regulations in circumstances where the Nominator’s nomination for the position had not been approved.

6. On 10 August 2021, the first named Applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mr Raphael Shin, the sole director and shareholder of the Nominator in relation to the nominated position. The Tribunal hearing was conducted by the videoconferencing facility, Microsoft Teams and with the assistance of an interpreter in the Korean and English languages. The Applicant and the Nominator were represented by their legal representative, Mr John Kim.

7. On 30 August 2011, the Tribunal affirmed the decision under review to refuse the application for approval of the nomination of a position in Australia made by the Nominator under r.5.19 of the Regulations. Based on the evidence, the Tribunal was not satisfied of a genuine need for the Nominator to employee a paid employee to work in the position of ‘Aquaculture Farmer’ under the Nominator’s direct control pursuant to r.5.19(4)(h)(ii)(B) and this was the basis on which the decision under review was affirmed.

8. As a result, on 6 September 2021, the Tribunal wrote to the Applicant pursuant to s.359A of the Act, in the following relevant terms:

   I am writing in relation to your application for review of the decision by a delegate of the Minister for Home Affairs (Minister) on 27 August 2018 to refuse to grant the Regional Employer Nomination (subclass 187) visas. The application for review was made on 10 September 2018 to the Administrative Appeals Tribunal (Tribunal) on behalf of yourself, Mrs Jae Lim Jeon, Miss Yoojin Cho and Miss Hye Rin Cho.

   In conducting the review, the Tribunal is required by section 359A of the Migration Act 1958 (Migration Act) to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are that on 30 August 2021, the Tribunal affirmed a decision made by a delegate of the Minister to refuse the application for approval of the nomination of a position in Australia made by Australia[n] Coral Coast Mariculture Pty Ltd under r.5.19 of the Migration Regulations 1994 (Regulations).

   The information before the Tribunal is relevant to the review because the Tribunal may find that, as a result of the above-mentioned decision, clause 187.233(3) of Schedule 2 of the Regulations is not satisfied in relation to your application. Clause 187.233(3) requires that there is an approved nomination of the position. Given the Tribunal’s decision on 30 August 2021 in the nomination application by Australia[n] Coral Coast Mariculture Pty Ltd, it appears that the nomination of the position to which your application relates, has not been approved.

   Subject to your comment and response, if the Tribunal relies on this information, it may find that clause 187.233(3) of the Regulations is not satisfied and this would be the reason, or a part of the reason, for affirming the decision under review to refuse your application for approval of a Regional Employer Nomination (subclass 187) visa.

   You are invited to comment on or respond to the above information in writing.

   Your comments or response should be received by 20 September 2021. If the comments or response and the information are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   If you cannot provide your written comments or response and the information by 20 September 2021, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 20 September 2021 and you must state the reason why the extension of time is required. [emphasis in original]

9. The Applicant did not respond to the Tribunal’s invitation.

10. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 20 September 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the review Applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

11. The review Applicant has not provided the comments or response within the prescribed period and no extension was sought or granted. In these circumstances, s.359C of the Act 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. The Tribunal has decided to proceed to make a decision without taking further steps to obtain the comments or response because the Applicant was provided with an opportunity to comment or respond to the information and has not done so (including by providing any evidence of an approved nomination in relation to the nominated position) or contacted the Tribunal to seek an extension of time to comment or respond.

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 meets the requirements of cl.187.233 of Schedule 2 of the Regulations.

14. Clause 187.233 as applicable in this case is set out in full in ‘Attachment A’ to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

15. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination;

    ·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 reg 1.13A and reg 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.

16. The nomination for the position of ‘Aquaculture Farmer’ (ANZSCO 121111) made by ‘Australian Coral Coast Mariculture Pty Ltd’ was refused by the Department and that decision was affirmed by the Tribunal on 30 August 2021. This information was put to the applicants pursuant to s.359A of the Act as set out above in these reasons. The Applicant did not respond to the Tribunal’s invitation. Based on the Tribunal’s decision of 30 August 2021, there is no approved nomination in relation to the nominated position and therefore cl.187.233(3) of the Regulations is not met in relation to this application.

17. 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.

18. Pursuant to cl.187.311 of the Regulations, the Tribunal must affirm the decision to refuse to grant subclass 187 visas to the secondary applicants (being Mrs Jae Lim Jeon, Miss Yoojin Cho and Miss Hye Rin Cho) because they do not meet the secondary criteria of being members of the family unit of a person who holds a subclass 187 visa, and there is no evidence that they can meet the primary criteria in their own right.

    DECISION

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

    W Frost
    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.