KIM (Migration)

[2021] AATA 1196

KIM (Migration) [2021] AATA 1196 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr HYO JOONG KIM
Mrs MOONJUNG SHIM

CASE NUMBER:  1826900

HOME AFFAIRS REFERENCE(S):          BCC2017/2595298

MEMBER:George Hallwood

DATE:18 March 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233 of Schedule 2 to the Regulations.

Statement made on 18 March 2021 at 4:35pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Buyer – subject of an approved nomination – decision under review remitted

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

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 21 July 2017. 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 Buyer.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the Minister had not approved the relevant nomination.

6.    The applicants appeared before the Tribunal on 16 February 2021 to give evidence and present arguments. This was a combined hearing with the related nomination application. The Tribunal also received oral evidence from the related nomination applicant, Ko & Han Discretionary Trust, represented by Mr Jin Ho Han. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

7.    The applicants were represented in relation to the review by their registered migration agent.

8.    For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

9.    The issue in the present case is whether the primary applicant is the subject of an approved nomination.

Nomination of a position

1. 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.

2. 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 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.

3. On 18 March 2021 the Tribunal approved the related nomination from Ko & Han Discretionary Trust – Case Number 1823945. Ko & Han Discretionary Trust is the person who made the nomination.

4. The Tribunal is not aware of any adverse information known to Immigration about the Ko & Han Discretionary Trust or a person associated with the person making the nomination.

5. Mr Han stated to the Tribunal that the position is still available to Mr Kim.

6. The visa application was made on 21 July 2017 which is not more than six months after the nomination of the position was approved.

7. Therefore, cl 187.233 is met.

CONCLUDING PARAGRAPHS

1. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

2. As the secondary applicant applied for a Regional Sponsored Migration Scheme subclass 187 visa on the basis of being a family member of the first named applicant, whose visa had been refused, the Tribunal recommends that Ms Moonjung Shim’s application also be reconsidered in the light of the approval of the related nomination.

DECISION

1. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

   ·cl 187.233 of Schedule 2 to the Regulations.

George Hallwood
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.