CHOI (Migration)

[2022] AATA 1014

CHOI (Migration) [2022] AATA 1014 (7 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr HYOUN HO CHOI
Ms HEE YEON KIM
Ms RHIAN CHOI

REPRESENTATIVE:  Mr Myeong Jai Lee (MARN: 0963753)

CASE NUMBER:  1914403

HOME AFFAIRS REFERENCE(S):          BCC2018/2115307

MEMBER:Sean Baker

DATE:7 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 07 March 2022 at 3:44pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – no response to s 359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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

2. The applicants applied for the visas on 16 May 2018. 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) (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 the Direct Entry stream.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the nomination referred to in r. 187.233(1) was refused by a delegate.

6. On 7 February 2022 the Tribunal wrote to the review applicants pursuant to s 359Aof the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. This information was that on 14 October 2021 the Tribunal determined it had no jurisdiction in relation for an application for review lodged by Stockstandard & More Pty Ltd (Stockstandard & More) in respect of a decision to refuse an employer nomination. This means the decision made on 14 May 2018 continues to apply and the matter is finally determined. The letter went on to explain that this information was relevant because this was the nomination for the purpose of the 187 visa application, and in relation to the second and third named applicants the criteria for members of the family unit required the first named applicant to be granted a visa.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 21 February 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicants have 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 applicants are 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 decision without taking further steps to obtain the comments.

9. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the nomination has been approved

    Nomination of a position

12. Clause 187.233 as applicable in this case is set out in full in an attachment 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.

13. 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.

14. As was set out in the letter sent to the applicants pursuant to s. 359A, the Tribunal determined on 14 October 2021 that it had no jurisdiction in relation to the application for review lodged by Stockstandard & More Pty Ltd (Stockstandard & More) in respect of a decision to refuse an employer nomination. As was explained to the applicants, the result of this is that the decision refusing the nomination of the Department applies and the matter has been finally determined.

15. I find that this is the nomination referred to in cl. 187.233(1). The nomination has not been approved.  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. The first named applicant has not satisfied the primary criteria for the grant of the visa. No suggestion has been made that the second and third named applicants meet the primary criteria for the grant of the visa. Therefore, the second and third named applicants cannot satisfy criteria that they are members of the family unit of a person who holds the relevant visa.

    DECISION

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

    Sean Baker
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.