Kim (Migration)

[2023] AATA 1527

Kim (Migration) [2023] AATA 1527 (11 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dong Won Kim
Mrs Mi Jung Son
Master Eden Kim

REPRESENTATIVE:  Ms Jungmin Lee (MARN: 1279501)

CASE NUMBER:  1927078

HOME AFFAIRS REFERENCE(S):          BCC2018/915522

MEMBER:Antonio Dronjic

DATE:11 April 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 11 April 2023 at 2:14pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – subject of an approved nomination – no response to s.359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 26 February 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 (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 Retail Manager (ANZSCO 142111).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the position to which the application relates had not been approved at the time of the delegate's decision.

6. The applicants applied for the review of the departments’ decision on 25 September 2019 and with the review application submitted a copy of the primary decision record.

7. By letter dated 22 March 2023, and in accordance with section 359A of the Act, the Tribunal invited the applicants to comment on or respond to information that it considered would be the reasons, or part of the reason, for affirming the decision under review.

   The particulars of the information were:

   ·     On 22 February 2018, Hi Asian Food Pty Ltd (the nominator) applied to the Department of Home Affairs (the Department) to nominate you for the position of Retail Manager (General) (ANZSCO 142111).

   ·     On 19 August 2019, the application for approval of the nominated position made by the nominator was refused by the Department. The nominator applied to the Tribunal for the review of that decision.

   ·     On 26 October 2022 the Tribunal affirmed the decision to refuse the nomination.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 187 visa. This is because one of the criteria contained within subclass 187, namely cl. 187.233(3) requires that the nomination has been approved by the Minister.

   This information is relevant to the second and third named applicants because cl.187.311 prescribes that the second and third named applicants meet the requirement of this subclause if the applicant is a member of the family unit (the primary applicant) who holds a Subclass 187 visa granted based on satisfying the primary criteria and made a combined application with the primary applicant. Accordingly, if the first named applicant is not a holder of a subclass 187 visa, the secondary applicant will not be able to meet cl.187. 311.

   You are invited to give comments on or respond to the above information in writing.

8. The invitation was sent to the applicants’ address provided in connection with the review and advised that, if the comments on or response to the information was not provided in writing by 5 April 2023, and no extension of time has been sought or granted, the Tribunal may decide on the review without taking further steps to obtain the comments on or response to the information contained in the Tribunal letter of 22 March 2023. The Tribunal further informed the applicants that they will lose any entitlement they might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

9. The review applicants have not provided comments on or response to information or requested an extension of time within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicants additional time in which to provide their comments on or response to information contained in the Tribunal’s letter of 22 March 2023.

11. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] 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[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

12. In this case the Tribunal wrote to the applicants under subsection 359A of the Act inviting them to provide comments and/or or response to the Tribunal letter of 22 March 2023. The applicants have failed to provide comments and/or or response within the prescribed period set for this purpose.

13. The Tribunal has had regard to the fact that the visa applications were refused by the Department on 24 September 2019 because the first named applicant did not meet cl.187.233 of Schedule 2 to the Regulations. This clause inter alia requires that the Minister has approved the nomination. The applicants submitted a copy of the primary decision record with the review applications. Accordingly, the applicants were aware of the reasons for the visa refusal for more than 3 years.

14. The Tribunal note that, if the applicants are not granted visa, they may be required to depart Australia. There is nothing to prevent the applicants from re-applying for a visa once the applicants find the new employer willing to nominate for the position within their business.

15. In the circumstances, the Tribunal considers the applicants have had sufficient time in which to provide his comments on or response to information contained in the Tribunal’s letter of 22 March 2023. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

17. 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 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.

18. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

19. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 187.233 lodged by Hi Asian Food Pty Ltd (the nominator) on behalf of the first named applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the first named applicant does not meet the requirements of clause 187.233 at the time of its decision.

20. 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.

21. The Tribunal must also affirm the decision not to grant the second and the third named applicants a subclass 187 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 187 visa, and there is no evidence that the secondary applicants meet the primary visa criteria for this subclass in their own right.

    DECISION

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

    Antonio Dronjic
    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.