Ju (Migration)

[2019] AATA 4461

Ju (Migration) [2019] AATA 4461 (27 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jinhyung Ju

CASE NUMBER:  1915258

HOME AFFAIRS REFERENCE(S):           BCC2018/1283145

MEMBER:Alan McMurran

DATE:27 September 2019

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 27 September 2019 at 11:54am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – no response to s 359A letter – not entitled to appear before the Tribunal – nomination application withdrawn – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 13 June 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 4 June 2019 ,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 17 March 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook. This stream applies to applicants seeking to work in regional Australia, who are sponsored by a nominator and who will be employed by the nominator on a full-time basis in the position for at least 2 years.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations, because the nomination related to the applicant’s visa application has not been approved, having been withdrawn by the applicant’s nominator ABPN Pty Ltd on 30 April 2019.

6. The applicant included a copy of the primary decision with this application. The applicant was represented by a registered migration agent (Affinity Migration Lawyers) in the application to the Department. The applicant has not provided address details of a representative for this application for review, and has provided his own personal details for correspondence and email.

7. The Tribunal wrote to the applicant under section 359A of the Act on 9 September 2019. The Tribunal’s letter invited the applicant to comment on or respond to information. The letter provided particulars for comment or response informing the applicant that on 30 April 2019 the nomination lodged by the nominator was withdrawn, and that the information before the Tribunal suggests the nomination for the position identified in the visa application was not approved. The applicant was requested to respond to the Tribunal by 23 September 2019, or to seek an extension of time on or before that date if more time was required to provide comments or response, and provide reasons why an extension of time was required. The Tribunal’s letter was dispatched by email to the applicant’s nominated email address at 15:48 on 9 September 2019.

8. The Tribunal received no response on or before the due date, 23 September 2019, or at all. The applicant has not sought an extension of time to provide any information or response.

9. Pursuant to section 360 (3) of the Act, the applicant is now not entitled to appear before the Tribunal. The Tribunal has proceeded to deal with the application without taking any further action to obtain information or the applicant’s views, and to review the application on the information before it, which includes the Tribunal’s file and electronic records from the Department’s file BCC 2018 1283145.

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 minister has approved the relevant nomination for the purposes of cl. 187.233 of the Regulations.

    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 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.

14. The Tribunal has considered the information before it. That includes an online submission received by the Tribunal by email on 26 June 2019. The submission is a copy of an email from the applicant’s migration agent to the applicant dated 12 June 2019, apparently attaching the decision from the Department that the nomination was not approved. The submission also includes electronic copies of a Deed of Release made 27 February 2019 between the applicant and another party, an affidavit of the applicant in Local Court proceedings in Sydney which were the subject of the Deed of Release and affirmed 9 January 2019, a written submission in those proceedings prepared for the applicant, and a copy of a Statement of Claim initiating those proceedings on 4 November 2018.

15. The Tribunal has also had regard to the written submission of the applicant attached to the Tribunal application and made 13 June 2019. The applicant’s submission states:

    “I am writing to AAT to appeal my procedural justice was breached by the nominator. Currently I am at a beginning stage of preparing a new visa sponsorship application with a new employer located in Sydney. I was only able to initiate a new application recently because I spent many months for court matter against my previous visa sponsor.”

    [The letter continues:]

    “I have not been informed by the nominator for any update on/after 30 April 2019. I never have received any natural justice letter or this related advice from ABPN Pty Ltd and legal representative called Migrant Solutions Pty Ltd (MARA. 0965044) up until 12 June 2019. I will provide if necessary the evidence of email correspondence sent by Sahan Hewa from Migration Solutions.

    They have kept being negligent to my application by non-compliance of sponsors obligation and responsibility for foreign worker. I should not have been penalised because of the fault conducted by the nominator and its legal representative”. [original text]

16. The copies of the legal proceedings provided by email to the Tribunal showed that the applicant was working as a cook at Albury, and was claiming unpaid wages from his former employer. The applicant said that he started his job in Albury on 19 August 2017 and was terminated on 28 February 2018. According to the applicant’s copy of the Deed of Release, the proceedings were settled on 27 February 2019.

17. The Department file shows that the Department wrote to the applicant via his representative on 30 April 2019 before determining the visa application, inviting the applicant to comment on information concerning the refusal of the nomination by the Department and advising the applicant that as the nomination had been refused, the visa application cannot be approved. The Department file shows no response was received to that invitation and it proceeded to a decision on 4 June 2019.

18. The Tribunal notes from the applicant’s submission (referred to above) that the applicant appears to have fallen out with his migration agent whom he complains did not inform him of the natural justice letter from the Department, and who he says was “negligent”. The Tribunal further notes that responsibility for the carriage of any application to the Department ultimately rests with the applicant.

19. The Tribunal has also requested further information from the applicant as referred to above, and invited him to comment, which invitation was sent to him personally and to which he has declined to respond. The Tribunal finds accordingly that there is no further information or response to which it can have regard, and particularly in circumstances where the applicant’s nominator withdrew the nomination application, before it could be determined by the Department.

20. 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 satisfied that the applicant does not meet the requirements of the subclause at the time of decision.

21. The Tribunal finds cl.187.233 is not met.

22. 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

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

    Alan McMurran
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.