Joo (Migration)

[2020] AATA 4771

Joo (Migration) [2020] AATA 4771 (9 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ahleum Joo
Mr Youngsuk Seo

CASE NUMBER:  1803698

HOME AFFAIRS REFERENCE(S):          BCC2017/193871

MEMBER:Susan Trotter

DATE:9 November 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 09 November 2020 at 3:39pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – request to adjourn hearing until judicial appeal finalised – statutory objective to provide fair, just, economical, informal, quick mechanism of review – applicants consented to review without attendance – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 2A(b)
Migration Act 1958, ss 65, 360(2)(b), 363(1)(b)
Migration Regulations 1994, Schedule 2, cl 187.233(3), rr 1.13A, 1.13B

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 (the Act).

2. The applicants applied for the visas on 15 January 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 (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), as primary visa applicant, applied for the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General) for SNJ International Pty Ltd (the nominator), the applicant for approval of a nomination in relation to the nominated position.

5. The delegate refused to grant the visa on the basis that cl.187.233(3) of Schedule 2 to the Regulations was not met because the associated nomination had not been approved as required. The delegate also found that the second-named applicant could not be granted a Subclass 187 visa, as he did not meet the secondary visa criterion (cl.187.311) requiring him to be a member of the family unit of a person who met the primary visa criteria.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 12 February 2018 and provided the Tribunal with a copy of the delegate’s decision.

7. On 6 October 2020, the Tribunal invited the applicant to comment on or respond to certain information before it, in particular information suggesting that the applicant is not, as required for the grant of the visa, the subject of an approved nomination. In particular, the Tribunal noted that the nomination application lodged by the nominator was refused on 4 January 2018 and, on 23 September 2020, the Tribunal affirmed the decision to refuse the nomination application.

8. On 9 October 2020, the Tribunal received an email from the applicants’ representative seeking that the Tribunal hold off from making a final decision on the matter until finalisation of the judicial review application lodged by the nominator following the Tribunal affirming the decision to refuse to approve the nomination.

9. On 16 October 2020, the Tribunal wrote to the applicants acknowledging their request for the matter to be adjourned generally and inviting them to attend a hearing on 3 November 2020, at which time the Tribunal would discuss their request with them.

10. On 22 October 2020, the applicants’ representative responded to the Tribunal’s hearing invitation on behalf of the applicants indicating that if the applicants’ request for a deferred decision was not acceptable, the applicants’ instructions were to advise the Tribunal that they would not participate in the subject hearing.

11. On 27 October 2020, the applicants’ representative again wrote to the Tribunal advising that the judicial review application in relation to the nomination matter had been filed and if the Tribunal’s position is not to allow a deferred hearing of this application until the related judicial review application is concluded by the Federal Circuit Court of Australia (FCCA), the applicants had instructed that they would proceed to a conjoined (FCCA) application.

12. The Tribunal considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act.

13. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

14. As canvassed in the Tribunal’s 6 October 2020 invitation to the applicants, a necessary primary criterion for the visa, an approved nomination, is not met. The Tribunal notes that a review application has been lodged in relation to the Tribunal’s decision to affirm the nomination refusal decision and acknowledges that if a judicial review application is successful in relation to the nomination, and on remittal the nomination is approved, the criterion might then be met. The Tribunal has a statutory objective to provide a mechanism of review that is ‘fair, just, economical, informal and quick’ (s.2A(b) of the Administrative Appeals Tribunal Act 1975).

15. The Tribunal notes the applicants’ indication that they would be proceeding with a conjoined application to the FCCA and considers that appropriate action in the circumstances, with the applicants’ visa refusal matter therefore continuing to be considered adjunct to the related nomination matter. Having regard to the Tribunal’s objectives, the uncertainty of the timing and result of the judicial review application and the applicants’ indication that they would be proceeding with a conjoined application to the FCCA, the Tribunal decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review and, on 28 October 2020, the Tribunal wrote to the applicants, care of their representative, advising that the Tribunal was not agreeable to adjourning the matter generally pending the FCCA’s consideration of the related nomination refusal and that the hearing would proceed. The Tribunal indicated that if the applicants did not wish to appear at the hearing they could consent to the Tribunal deciding the matter on the papers pursuant to s.360(2)(b) of the Act.

16. On 28 October 2020, the applicants’ representative wrote to the Tribunal advising that the applicants consent to the Tribunal deciding the review without the applicants appearing (at hearing).

17. The Tribunal has therefore proceeded to make a decision on the review without the applicants appearing before it: s.360(2)(b) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

20. Clause 187.233, as applicable in this case, is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an approved nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application.

21. In addition, this criterion also requires that:

    (a)the person who will employ the applicant is the person who made the nomination;

    (b)the nomination has been approved and has not been subsequently withdrawn;

    (c)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 of the Regulations); or it is reasonable to disregard any such information;

    (d)the position is still available to the applicant; and

    (e)the visa application was made no more than six months after the nomination of the position was approved.

22. As noted in the Tribunal’s 6 October 2020 invitation letter to the applicant, the evidence before the Tribunal is that the nomination application lodged by the nominator was refused on 4 January 2018 and, on 23 September 2020, the Tribunal affirmed the decision to refuse the nomination application.

23. On the evidence before it, the Tribunal finds that there is no approved nomination and the Minister has not approved the nomination to which the applicant’s visa application relates. The Tribunal is therefore not satisfied that the applicant meets the requirements of cl.187.233(3) as required at the time of decision.

24. 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 stream. 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 to refuse to grant the applicant a Subclass 187 visa must be affirmed.

25. The Tribunal also affirms the decision not to grant the second-named applicant a Subclass 187 visa as he does not meet the secondary visa criterion requiring him to be a member of the family unit of a person who holds a Subclass 187 visa, and there is no evidence that he meets the primary visa criteria for this subclass in his own right.

    DECISION

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

    Susan Trotter
    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.