Kang (Migration)

[2020] AATA 3329

Kang (Migration) [2020] AATA 3329 (13 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Minsook Kang
Mr Hunkyu Lee

CASE NUMBER:  1805501

HOME AFFAIRS REFERENCE(S):          BCC2016/2230441

MEMBER:Stavros Georgiadis

DATE:13 August 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 13 August 2020 at 7:26pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related nomination of position refused and refusal affirmed on review – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii), Schedule 2, cl 187.233(3)

CASE
Varsi v Minister for Immigration [2018] FCCA 1280

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 30 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 (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 Retail Manager (ANZSCO 142111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination in respect of the position.

6. The applicants appeared before the Tribunal on 12 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sole Director, Ms Ji A Lee, of the sponsor employer who appeared on behalf of Yoona Pty Ltd ATF The Mook Family Trust in the related AAT casefile 1802374 refusing the nomination. The related matters were heard together in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

7. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. 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 video conference. The Tribunal is satisfied that the applicants were 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 decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the criteria for grant of the (Class RN) visas in respect of all applicants.

    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 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.

13. The Tribunal notes from the Department file that the required declaration has been made in relation to the position nominated by the employer sponsor, being that of Retail Manager (ANZSCO 142111) to satisfy cl.187.233(1).

14. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, Yoona Pty Ltd as Trustee for The Mook Family Trust t/as The Cheesecake Shop Myaree in Western Australia. Thus, the applicant meets cl.187.233(2).

15. On 13 August 2020, the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19(4) in the related AAT casefile 1802374 for the reasons set out in the Decision Record of that date refusing the nomination.

16. In accordance with the procedure under s.359AA of the Act, the Tribunal put to the applicants at the hearing that it wished to discuss information that, subject to their response, would be the reason or part of the reason, for affirming the decision to refuse the applicant the 187 visas. The Tribunal explained that the applicants would be asked to respond to this information and could seek additional time to comment on, or respond to, the information, which the Tribunal would consider.

17. The Tribunal put to the applicants that in circumstances where the Tribunal affirmed the decision refusing approval of the nomination of the position to which the application relates, the primary applicant would not be able to meet essential criteria to satisfy cl.187.233 for the Subclass 187 visa. The Tribunal put to the applicants that this information is relevant to the review because without evidence of the approval of the relevant nomination for the position, the primary applicant could not satisfy the provisions of clause 187.233(3) of the Regulations for the grant of the Class RN visas sought in respect of all applicants.

18. The applicants responded straight away to the Tribunal stating that they understand and accept that in circumstances where there is no approved nomination, it would not be open for their visa applications to be successful given an approved nomination for the position is one of the essential criteria.

19. As aforementioned, on 13 August 2020 the Tribunal affirmed the decision to refuse the nomination of the position in respect of the applicant. The Tribunal has not returned the matter for any further evidence or submissions since the hearing of 12 August 2020 as in these circumstances, and in view of the authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58) it would be ‘futile’ as ‘no useful result could ensue’ because the visa cannot be granted in the absence of an approved nomination. The Tribunal is satisfied that there is no practical injustice in not returning the matter to the Tribunal for further hearing following its decision refusing the nomination.

20. Having considered the available evidence before it, the Tribunal is satisfied that the position of Retail Manager (ANZSCO 142111) is the subject of the relevant r.5.19 nomination application that seeks to meet the requirements of subparagraph 5.19(4)(h)(ii) relating to that position. The Tribunal has no evidence before it that the nomination is approved to satisfy the requirement of cl.187.233(3) for the Direct Entry stream. The Tribunal finds that the nomination of the position to which the application relates is not approved.   

21. Therefore, 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 in respect of all applicants (as claimed members of the same family unit).

    DECISION

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

    Stavros Georgiadis
    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.