HWANG (Migration)

[2021] AATA 1807

HWANG (Migration) [2021] AATA 1807 (20 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Daekyu HWANG
Ms Miri KIM
Mr Seojin HWANG

CASE NUMBER:  1823156

HOME AFFAIRS REFERENCE(S):          BCC2016/2077572

MEMBER:George Hallwood

DATE:20 May 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233 of Schedule 2 to the Regulations.

Statement made on 20 May 2021 at 4:22pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accountant (General) – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 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 (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, to work in the nominated position of Accountant (General).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the application was not the subject of an approved nomination.

6. Mr Daekyu Hwang on 20 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Mi-Sook Hunt, the applicant’s manager. As this was a combined hearing with that of the related nomination application – case number 1821286 – Mr William Warren appeared to give evidence and present arguments before the Tribunal on behalf of the nominator.  

7. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the applicant either to the hearing being combined or the hearing being held by video and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary applicant’s application is the subject of an approved nomination.

    Nomination of a position

11. 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.

12. 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.

13. The Tribunal has considered the oral and documentary evidence and finds:

    ·The position of Accountant (General) to which the application relates is the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia (Western Australia).

    ·This position is one that was the subject of the declaration made as part of the current visa application.

    ·Bernini Stone and Tiles Pty Ltd made the nomination and will also employ the applicant

    ·The nomination was approved by the Tribunal on 20 May 2021 and has not subsequently been withdrawn

    ·The Tribunal is not aware of any ‘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) and Mr Warren confirmed that he was not aware of any

    ·Mr Warren confirmed that the position of Accountant (General) is still available to the applicant; and

    ·The visa application made on 17 June 2016 is not more than six months after the nomination of the position was approved.

14. Therefore, cl 187.233 is met.

    CONCLUDING PARAGRAPHS

15. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

16. The Tribunal notes that the secondary applicants were refused visas solely on the basis that the primary applicant’s application was refused. The visa applications for the secondary applicants will be determined by reference to the outcome of the primary visa applicant’s application following remittal to the department.

    DECISION

17. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233 of Schedule 2 to the Regulations.

    George Hallwood
    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.