Choi (Migration)

[2018] AATA 1819

Choi (Migration) [2018] AATA 1819 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Junhi Choi

CASE NUMBER:  1806632

DIBP REFERENCE(S):  BCC2016/4377219

MEMBER:Denise Connolly

DATE:31 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 31 May 2018 at 2:23pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) visa – Direct entry stream – Nominated position of Cook – Nomination application validly withdrawn – Sole action of one director – Valuable employee – Position open – Decision under review affirmed

LEGISLATION
Migration Act 1958 ss 65, 349, 353
Migration Regulations 1994 rr 1.13A, 1.13B, 5.19 Schedule 2 cls 187.233

CASES
VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 2 March 2018 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 December 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). 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 the applicant. 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 Agreement stream.

3. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook.  This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because she found the nominator withdrew the nomination application on 17 May 2017 before it was approved.

5. The applicant appeared before the Tribunal on 2 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer.   

6. The applicant was represented in relation to the review by her registered migration agent who also attended the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Nomination of a position

1. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations. 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, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

2. 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 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.

3. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the nominator, Castle and River Pty Ltd (Castle and River) lodged an application for approval of a nomination on 27 December 2016, identifying the applicant as the nominee. The delegate records that on 17 May 2017 the nomination application was withdrawn. The applicant was notified of this by the Department. Correspondence was provided to the Department (by the applicant’s employer, the nominator) however the delegate found that the nomination was validly withdrawn. The delegate concluded the applicant does not meet cl.187.233 and refused the visa application.

4. Prior to the hearing the applicant’s representative provided to the Tribunal written submissions, supported by documents, as follows.  The nomination was withdrawn by Mrs Wingsze Athena Lai on 11 May 2017, purportedly on behalf of the nominator, Castle and River. It is submitted however that the withdrawal was invalid and the nomination remains in effect. The visa application was linked to nomination application ID 1280597252. The agent listed as the authorised representative was Haruhiko Ozaki from ‘Fast Track Visas’.  At the time the nomination application was lodged the Directors of Castle and River were Mutsumi Maeshinjo (Managing Director), Mrs Lai (Director and Company Secretary), Ikuko Maeshinjo (Director) and Kaoru Maeshinjo (Director). In early May there was a falling out between Mrs Lai and the other Directors. Mrs Lai made accusations about the applicant and she purportedly unilaterally terminated the applicant’s employment. The termination was unauthorised and the applicant was immediately reinstated and continues to work for the nominator. On 11 May 2017 Mrs Lai wrote directly to the Department purportedly withdrawing the nomination, without the knowledge of the other Directors.  Mrs Lai then ceased to be a Director on 15 May 2017.

5. The representative advised that on 17 May 2017 the nominator’s agent was informed that the nomination had been withdrawn ‘as requested’.  The representative requested that the matter be referred to the Legal Opinions section but this request was dismissed and the visa application was refused. The representative is of the opinion that the only question for the Tribunal to determine is whether the nomination was validly withdrawn.

6. The representative discussed the Department’s guidelines on the effective date of a withdrawal. The representative has referred to the Corporations Act and has argued that Mrs Lai did not have authority to act on behalf of the company.  He has submitted that the delegate constructively knew or suspected that the assumption of regularity was incorrect because Mr Ozaki was the authorised recipient, appointed by Mr Mutsumi Maeshinjo who had signed all documents previously, and the purported withdrawal came directly from Mrs Lai, not the agent. As at the date that the Department acknowledged the withdrawal Mrs Lai was no longer a Director. He provided evidence that she ceased to be a Director on 15 May 2017. He referred to her Linkedin profile.  He submitted that the delegate therefore was not able to rely on statutory assumptions under the Corporations Act.  The representative submitted that the delegate should have consulted with Mr Maeshinjo as to the validity of the withdrawal.

7. The representative submitted therefore that the Tribunal should find that the nomination was not validly withdrawn, based on evidence set out above, and it should remit the matter for reconsideration with directions that cl.187.233 is met.

8. Included in the documents provided is a letter from Mutsumi Maeshinjo dated 18 May 2017 advising the Department that the nomination application was not withdrawn with his authority, and that Mrs Lai had purposely actioned the withdrawal to disrupt the business due to a breakdown in the relationship. He reiterated the business’ reliance on the applicant, an integral member of the kitchen team and confirmed her ongoing employment.

9. At the hearing the Tribunal discussed the requirements of cl.187.233 and explained to the applicant that it does not have jurisdiction in relation to the delegate’s decision that the nomination has been validly withdrawn. It noted that it is apparent from the documents that there was animosity between the Directors of the business and that Mrs Lai may have acted vexatiously by withdrawing the nomination application. However it explained that this does not give the Tribunal any power to find that the nomination was not validly withdrawn. It explained that such matters are dealt with by the Federal Court. The representative confirmed that the nominator had not applied to the Federal Court for judicial review of the Department’s decision to find that the nomination was validly withdrawn because of delays in that jurisdiction and because the parties believed that the Tribunal would be able to make findings that the nomination was not validly withdrawn and this would give gravitas to the request that the Department reconsider its decision to find that the nomination was validly withdrawn.  The Tribunal explained to the applicant its preliminary view that it was not satisfied that it had the jurisdiction to make such a finding but it would consider the representative’s submissions.

10. The Tribunal explained that, given it probably does not have any jurisdiction to find that the nomination was not validly withdrawn and it is reviewing the decision that the applicant does not meet cl.187.233, it may find that the applicant does not meet the requirement that the nomination has been approved. The representative asserted that it would be unfair of the Tribunal to affirm the decision on the basis that the nomination has not been approved when, in his view, the nomination is still on foot.

11. After the hearing the representative made further written submissions as follows:

    It would be a jurisdictional error to proceed on the basis that the Tribunal’s “hands are tied” simply because the Minister has not yet approved the nomination (as is required by subclause 187.233(3)). Finalising the application on this basis would mean that every visa application with a pending nomination would have to be refused immediately.

    Here, the delegate simply found that 187.233 was not satisfied on the basis that the nomination had been withdrawn, without any specific findings in relation to which subclauses of 187.233 were not met.

    The powers of the Tribunal under section 349(2)(c) of the Act are broad and it is well equipped to remit the matter with a direction that a “specified criterion” is met.

12. The representative provided a table of the various requirements of cl.187.233 and identified those met by the applicant. With respect to the requirement that the Minister has approved the nomination, the representative states that this is unable to be assessed because the nomination is still pending and no assessment has been made on the application (withdrawal was invalid).

13. The representative argues as follows:

    A jurisdictional fact is one that is "an essential preliminary to the decision-making process" (see VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 at [19]).

    For the Tribunal to simply deem clause 187.233 as “not met” because the nomination is not approved would be proceeding on an incorrect jurisdictional fact and constitute a jurisdictional error. The Tribunal would effectively be proceeding on the basis that the nomination is not approved only because it was withdrawn and the assessing delegate is functus officio. This is not correct – the invalidly withdrawn nomination remains active and pending assessment (much like an invalid property title transfer maintains the original owner). The Tribunal has before it thousands of other applications for review of visa application refusal decisions which remain subject of a pending nomination. It would be unreasonable to simply refuse the visa application on that basis of a “pending application”.

    Section 353 of the Act requires the Tribunal to act according to substantial justice and the merits of the case. In light of the invalid nomination withdrawal and the fact that the Applicant cannot lodge a new Class RN visa application (the position’s location no longer meets the gazetted “regional” requirements for future applications), it would be unreasonable for the Tribunal to close its eyes as to the factual circumstances before it. The Applicant should have an opportunity to have the matter properly assessed without vexatious interference by third parties.

14. The representative recommends that the Tribunal remit the matter for reconsideration with a direction that the Applicant meets subclauses 187.233 (1), (2),(4A) and (5) of Schedule 2 of the Regulations.

15. The Tribunal has considered the representative’s submissions but it does not agree that the nomination is still pending. As it clearly states in the delegate’s decision record, as far as the Minister is concerned, the nomination was validly withdrawn. There is no evidence before the Tribunal that the Minister or his delegate is reconsidering that decision. There is no evidence before the Tribunal that an application has been made to the Federal Court for review of the Minister’s decision to find that the nomination was validly withdrawn. As the Tribunal explained at the hearing, while it has jurisdiction to consider whether the criteria in cl.187.233 are met as part of the review of the delegate’s decision, it does not have jurisdiction to review the delegate’s decision that the nomination was validly withdrawn. 

16. While the representative is of the view the delegate made the wrong decision in finding that the nomination was validly withdrawn there is no indication that that decision may be changed in the foreseeable future.  The Tribunal is not satisfied that decision is pending. In those circumstances, if a nomination application was pending, it would postpone making its decision until such time as a decision was made. In the circumstances of this case, the Tribunal is of the view there is no utility in postponing its decision as there is no evidence before it to indicate that the nomination will be approved in the foreseeable future.

17. The Tribunal has sympathy for the applicant as it appears that there was a relationship breakdown between her current employer and Mrs Lai. It appears Mrs Lai may have acted without the knowledge of the other Directors.  It accepts that the employer values her contribution to be the business and that the position is still available to the applicant. It accepts that other requirements of cl.187.233 are met, such as cl.187.233(5). However the Tribunal is not satisfied on the basis of the evidence before it that the nomination has been approved. The applicant therefore does not meet cl.187.233(3).  Accordingly cl.187.233 is not met.

18. 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.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Denise Connolly
Member