Ju (Migration)

[2019] AATA 5969

Ju (Migration) [2019] AATA 5969 (17 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Han Gyeang Ju

CASE NUMBER:  1700968

DIBP REFERENCE(S):  BCC2016/2777406

MEMBER:Katie Malyon

DATE:17 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 17 September 2019 at 10:29 am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – member of family unit of son – son’s 457 visa ceased when granted permanent residence visa – applicant not a member of the family unit of a 457 visa holder – no response to tribunal’s s 359A letter – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cls 457.321, 457.324

CASE

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 Immigration on 13 January 2017 to refuse to grant the visa applicant, South Korean national Mr Han Gyeang Ju, a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Ju applied for the visa on 22 August 2016. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.457.324 of Schedule 2 to the Regulations was not met because, although he applied on the basis of being a member of the family unit of his son Mr Jin Woo Joo, Mr Ju did not provide the Department with written confirmation from the sponsors, Hyun Hee Lee and Young Woo Lee T/A Sushi Man, that they agreed to include Mr Ju as a secondary applicant.  A copy of the delegate’s decision was provided to the Tribunal.

   Background

4. On 2 September 2019, the Tribunal wrote to Mr Ju pursuant to s.359A of the Act. In its letter, the Tribunal observed that Mr Ju had applied for a Subclass 457 visa on the basis of being a member of the family unit of his son, Mr Joo. Mr Joo’s Subclass 457 visa was granted on 14 April 2015 but it ceased on 9 April 2018. The Tribunal noted that it is a requirement for the grant of a Subclass 457 visa as a secondary applicant that Mr Ju is a member of the family unit of a person who holds a Subclass 457 visa: cl.457.321 of the Regulations.

5. The Tribunal’s letter to Mr Ju was sent to his representative at the email address provided in the review application.  The Tribunal has independently confirmed the representative is still a registered migration agent and the email address used by the Tribunal in its letter of 2 September 2019 was correctly identified in the review application lodged with the Tribunal.  Mr Ju was requested to provide any comments or response to the information in the Tribunal’s s.359A letter on or before 16 September 2019.  The Tribunal informed Mr Ju that, if it did not receive a response by 16 September 2019, or a request for an extension of time in which to provide a response by that date, he would lose any entitlement to appear before the Tribunal to give evidence and present arguments.  No response has been received from Mr Ju, nor has he requested additional time in which to make a response.

6. As Mr Ju has not provided any response to the Tribunal’s s.359A letter, the provisions of s.359C of the Act apply and, pursuant to s.360(3) of the Act, he is 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 457.321 of Schedule 2 to the Regulations provides that:

   The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa (emphasis added).

9. The issue in this case is whether, at the time of this decision, Mr Ju is a ’member of the family unit’ of a person who satisfied the primary criteria for a Subclass 457 visa and who is (still) the holder of a Subclass 457 visa.

10. Review of the Department’s file confirms that Mr Ju applied for his Subclass 457 visa on the basis of being a dependent family member of his son Mr Joo.  Mr Joo and his partner Ms Min Choi were sponsored by Hyun Hee Lee and Young Woo Lee T/A Sushi Man.  Their Subclass 457 visas were approved on 14 April 2015: however, these visas ceased on 9 April 2018 when Mr Joo and Ms Choi t were both granted Subclass 186 Employer Nomination Scheme permanent residence visas. 

11. On 2 September 2019, the Tribunal wrote to Mr Ju pursuant to s.359A of the Act and noted that, based on its review of Departmental records, Mr Joo’s Subclass 457 visa ceased on 9 April 2018.  As such, Mr Ju could not be a member of the family unit of a person who satisfied the primary criteria for grant of a Subclass 457 visa and who holds a Subclass 457 visa.  Mr Ju did not respond to the Tribunal’s s.359A letter.

12. Based on the evidence before it and for the reasons given above, the Tribunal finds that the requirements in cl.457.321 of Schedule 2 to the Regulations have not been met by Mr Ju. Because Mr Joo is no longer the holder of a Subclass 457 visa it has not been necessary for the Tribunal to consider the delegate’s reasons for refusing Mr Ju’s Subclass 457 visa application.

13. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.  There is no evidence before the Tribunal to indicate that Mr Ju meets the primary requirements for grant of a Subclass 457 visa. 

14. It follows that, as Mr Ju does not satisfy the applicable criteria for grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    Katie Malyon

    
    Member