Kim (Migration)

[2023] AATA 440

Kim (Migration) [2023] AATA 440 (3 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ji A Kim
Mr Ki Hoon Ahn

REPRESENTATIVE:  Mr Hwa Jong Yoon (MARN: 0741968)

CASE NUMBER:  1921787

HOME AFFAIRS REFERENCE(S):          BCC2017/4767671

MEMBER:Terrence Baxter

DATE:3 March 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 03 March 2023 at 10:13am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – executive chef – subject of approved position nomination – refusal of related nomination application affirmed – consent to decision without hearing – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.233(3), 186.311

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 on 24 July 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 13 December 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement 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 Executive Chef for JHMY International Pty Ltd (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.233(3) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 15 June 2019 and that accordingly the applicant did not satisfy cl.186.233(3) and did not meet cl.186.233 as a whole as required.

6. The delegate also found that the second named applicant could not be granted a Subclass 186 visa, as he did not meet the secondary visa criterion (cl 186.311) requiring him to be a member of the family unit of a person who has met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decisions with the Tribunal on 7 August 2019.

8. On 17 August 2022, the Tribunal wrote to the applicants advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to appear before the Tribunal by video conference to give evidence and present arguments relating to the issues at a hearing scheduled for 6 September 2022.

9. The applicant was represented in relation to the review by its registered migration agent Mr Hwa Jong Yoon of Global Legal Consulting Pty Ltd of Brisbane.

10. On 1 September 2022, the representative provided to the Tribunal a completed response to the Tribunal’s hearing invitation. That response stated that the applicants would not participate in the hearing on 6 September 2022 and consented to the Tribunal making a decision on the papers without taking further steps to allow the applicants to appear. The response was signed by the applicant.

11. The Tribunal is satisfied that the applicants consented to the Tribunal making a decision without the applicants appearing before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

14. Clause 186.233 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. 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.

15. 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 of the Regulations); 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.

16. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Executive Chef approved, with the applicant as nominee, on 13 December 2017. The nomination application was refused on 15 June 2019 and the nominator sought review of that decision with the Tribunal on 25 June 2019.

17. On 24 January 2023, the Tribunal affirmed the decision not to grant the nomination application.

18. On 16 February 2023, the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 24 January 2023, the Tribunal affirmed the decision not to grant an Employer
    Nomination lodged by JHMY International Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purpose of satisfying cl. 186.223(1).

    If we rely on this information in making our decision, we may find that Ms Ji A Kim
    does not meet cl. 186.233(2), which requires the nomination be approved, and affirm
    the decision under review.

    We may subsequently find that Mr Ki Hoon Anh does not meet the secondary visa
    criterion cl.186.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and who holds a Subclass 186 visa, and affirm the decision under review in respect of his application.

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

    Your comments or response should be received by 2 March 2023.

19. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. The applicants failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has been received by the Tribunal.

20. Where a review applicant is invited to comment on or respond to information in accordance with s 359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s 359C(2) of the Act.

21. The Tribunal has considered whether it should take further action to obtain the applicants’ views on the information referred to in paragraph 18 above. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 24 July 2019 of the reasons for the visa application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 16 February 2023 were set out in that correspondence.

22. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicants’ views on the information referred to in the invitation from the Tribunal of 16 February 2023 or to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl 186.233 and cl 186.311 of Schedule 2 to the Regulations.

23. The Tribunal notes that the application for nomination for the position of Executive Chef has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 186.233(3) is not met.

24. Therefore, cl 186.233 is not met in respect of the applicant.

25. The applicant has only sought to satisfy the criteria for a Subclass 186 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.

26. In relation to the second named applicant, the Tribunal notes that cl 186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 186 visa and is not the holder of a Subclass 186 visa, it follows that the second named applicant does not satisfy the requirements of cl 186.311. The Tribunal finds accordingly.

    DECISION

27. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    186.233(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)(i); or

    (ii)subregulation 5.19(2) 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 1114B(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 not more than 6 months after the Minister approved the nomination.