KIM (Migration)

[2021] AATA 147

KIM (Migration) [2021] AATA 147 (13 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SUNG SOO KIM
Ms AIYOUNG CHOI
Mr MINJUN KIM
Mr MINJAE KIM
Miss SOYULE KIM

CASE NUMBER:  1724902

HOME AFFAIRS REFERENCE(S):          BCC2016/2290080

MEMBER:Amanda Ducrou

DATE:13 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 13 January 2021 at 5:57pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Marketing Specialist – subject of an approved nomination – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
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 of Immigration and Border Protection on 27 September 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 7 July 2016. 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 (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 Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist (ANZSCO 225113).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by the sponsor, INUS Australia Pty Ltd, was refused by the Department and, as such, there is no approved nomination. The decision to refuse the nomination lodged by INUS Australia Pty Ltd was made by a delegate of the Minister of Immigration and Border Protection on 3 August 2017.

6. The Tribunal received an application for review from the applicants on 12 October 2017. The Tribunal received a copy of the delegate’s decision record with the application. The Tribunal received documents from the applicants in support of the application for review including documents received on 28 October 2019. The documents included written submissions dated 28 October 2019 from the applicants’ representative.

7. The applicant appeared before the Tribunal on 18 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jun Raymond, representing the nominator. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

8. The applicants were represented in relation to the review by their registered migration agent, Dr Joseph Tai-Bong Ri. Dr Ri attended the Tribunal hearing.

9. The Tribunal invited the applicants to provide further information, including further submissions after the hearing. The Tribunal wrote to the applicants on 23 December 2019. The letter set out the information that the applicants were invited to provide. The letter asked the applicants to provide the information by 17 January 2020 and noted that the applicants could request an extension of time provided that any such request was received before 17 January 2020. The letter explained that if the requested information was not received within the period allowed or as extended (if an extension were requested and granted), then the Tribunal would proceed to make its decision on the review without taking further action to obtain the information. On 17 January 2020 the Tribunal received documents from the applicants. The documents included written submissions dated 17 January 2020 from the applicants’ representative and a statutory declaration made by the applicant on 17 January 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. At the commencement of the hearing the Tribunal explained that it is a requirement for the grant of the Subclass 186 visas under cl.186.223(2) of Schedule 2 to the Regulations that there is an approved nomination. The Tribunal discussed that it is of the view that the outcome of the applicants’ review applications is related to the outcome of the review by the Tribunal of the Department’s decision to refuse to approve the nomination application made by INUS Australia Pty Ltd. The Tribunal noted that if the nomination was not approved, then this would result in their review applications being unsuccessful.

13. the Tribunal told the applicant that the Tribunal was in possession of a certificate issued by the Minister for Immigration and Border Protection under s.376 of the Act regarding the Tribunal’s discretion to disclose certain information. The Tribunal told the applicant that the Tribunal is of the view that the certificate is validly issued and that the information subject to the certificate is relevant to the application for review as it relates to an anonymous “dob-in” allegation that the applicant was paid to sponsor the nominee and that documents provided in support of the nomination application are false.

14. The Tribunal provided a copy of the certificate to the applicant and invited the applicant to make submissions on the validity of the certificate and whether the Tribunal should exercise its discretion to give or disclose the material, subject to the certificate to the applicant.

15. The Tribunal declined to disclose the information relating to the source of the information on the basis that it was inappropriate to do so, as it may potentially reveal the identity of the source. The Tribunal considered it was appropriate to disclose the gist of the remaining information that is subject to the certificate and exercised its discretion regarding disclosure of the information under s.376(3) of the Act. The Tribunal put that information to the applicant pursuant to s.359AA of the Act. The particulars of the information are:

    ·INUS Australia Pty Ltd sold a 457 visa to the applicant with fake documents.

    ·INUS Australia Pty Ltd asked the applicant to pay his own wages, tax, superannuation etc to meet the conditions of the visa. This was suspected by the Department before, so INUS Australia Pty Ltd made fake wage transactions as evidence.

    ·INUS Australia Pty Ltd received money in cash from the applicant and then sent it back to the applicant through bank accounts.

    ·INUS Australia Pty Ltd has asked the applicant for thousands of dollars. The applicant has no skills and currently works as a cleaner and shop delivery man.

    ·the applicant has no other choice, so he gave lots of money to INUS Australia Pty Ltd to maintain his visa conditions.

    ·all documents that INUS Australia Pty Ltd has submitted might be perfect in appearance, but they are all fake.

    ·this has occurred for approximately more than five years.

16. The Tribunal told the applicant that it has not made up its mind about the information but considered that the information is relevant and potentially adverse to the applicant’s case as, if the Tribunal did accept the allegation, it would indicate that INUS Australia Pty Ltd was in breach of its sponsorship obligations or that it had engaged in conduct that contravenes Commonwealth law relating to immigration, and that this may mean that the Tribunal finds that the application for approval of the nomination of a position in Australia that INUS Australia Pty Ltd made does not meet r.5.19 of the Regulations. The Tribunal explained that if the Tribunal were to find that the nomination application made by INUS Australia Pty Ltd did not meet all of the requirements of r.5.19 of the Regulations this may mean that the Tribunal may find that the nominated position has not been approved as required under cl.186.223(2) of Schedule 2 to the Regulations. The Tribunal explained that this information is relevant to this review because it is a requirement for the grant of the Subclass 186 visas that the position specified in the visa application is the subject of a current approved nomination and if the Tribunal relies on this information in making its decision, it may find that the applicant is not the subject of a current approved nomination and, therefore, could not satisfy a requirement for the grant of the visa and that this would be the reason, or a part of the reason, for affirming the decision that is under review.

17. The Tribunal asked the applicant if he wished to comment on or respond to this information immediately, or whether he wished to ask for additional time to do so. The applicant requested further time to comment or respond and conferred with Dr Ri. The Tribunal decided that it was appropriate to adjourn the hearing to allow time for the applicant to respond to the information. When the hearing resumed, the applicant confirmed that he wished to proceed with the hearing and to respond.

18. Mr Kim told the Tribunal that knew the source of the information. One of his roles in his position is to find work placements for students. He believes that the source of the information is a person who worked for a company where he was looking for student placements. He associated with two people from that company on various occasions. One of them is located interstate and the other is located in Victoria. He discussed his situation with both people including that he held a Subclass 457 visa. Mr Kim noticed, from his contacts with the people, that there were tensions between them relating to their work. Within in a year the person who is in Victoria told Mr Kim that the other person had been sacked by their employer. Later on, the person who is interstate telephoned Mr Kim and tried to blackmail him by making comments about whether he really held his visa. The person told Mr Kim that they might report him to the Department. At the hearing the Tribunal invited the applicant, if he wished to do so after the hearing, to provide further comment or further respond to the information particularised at the hearing.

19. In the statutory declaration that the applicant provided to the Tribunal on 17 January 2020 the applicant provided further information in response to the information that the Tribunal particularised at the hearing. The statutory declaration is consistent with the applicant’s oral evidence and contains further detail of the matters the applicant described at the hearing. The Tribunal notes that, as pointed out by Dr Ri in the written submissions dated 17 January 2020, at paragraph 18 of the statutory declaration, the applicant states:

    … I categorically deny the allegations contained in the tip-off information.

20. At the hearing the applicant confirmed that he understood the basis of the decision to refuse the visa applications. Mr Kim gave oral evidence about, amongst other matters, his employment with INUS Australia Pty Ltd. Mr Raymond also gave oral evidence about Mr Kim’s employment.

21. On 1 December 2020 the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on or respond to information which it considers would, subject to their comments or response, be the reason, or a part of the reason for affirming the decision under review. The letter was sent by email to the applicants via their representative at the email address provided in connection with the review.

22. The letter provided particulars of the information, namely that the nominator (INUS Australia Pty Ltd) had sought review by the Tribunal of the decision made by the delegate to refuse the nomination application made by INUS Australia Pty Ltd but on 30 November 2020 the Tribunal had affirmed that decision, meaning that the nominator’s application for the nominated position has not been approved as required under cl.186.223(2) of Schedule 2 to the Regulations. The Tribunal’s letter to the applicants explained that this information is relevant to their review because it is a requirement for the grant of the Subclass 186 visas that the position specified in the visa application is the subject of a current approved nomination and if the Tribunal relies on this information in making its decision, it may find that the applicant is not the subject of a current approved nomination and, therefore, could not satisfy a requirement for the grant of the visa. The letter advised that this then would be the reason, or a part of the reason, for affirming the decision that is under review. The letter advised further, that if the Tribunal found that the applicant did not meet the primary visa criteria, then this would be the reason, or a part of the reason, for affirming the decision under review not to grant the second, third, fourth and fifth named applicants Subclass 186 visas, as the Tribunal would have to find that the second, third, fourth and fifth named applicants did not meet the requirements in cl.186.311 to be a member of the family unit of a person who satisfies the primary visa criteria, and there was no evidence that the second, third, fourth and fifth named applicants met the primary visa criteria in their own right.

23. The Tribunal’s letter asked the applicants to provide their comments or response by 15 December 2020. The letter noted that the applicants could request an extension of time provided that any such request was received by 15 December 2020. The letter explained that if their comments or response to the information was not received within the period allowed, or as extended, the Tribunal may make a decision on the review without taking further action to obtain the applicants’ views on the information and that the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

24. On 14 December 2020 the Tribunal received an email sent by the applicants’ representative in response to the request. A letter dated 14 December 2020 was attached to the email. The letter stated (in relevant part):

    We confirm that the applicants accept the Tribunal’s finding that the requirements set out in clause 186.223 are not met, thus resulting in the application to be incapable of being approved, and therefore that they consent to the Tribunal deciding on their review application without taking any further action.

25. The Tribunal considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide further evidence to support the review application.

26. In doing so, the Tribunal had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to defer its decision-making processes indefinitely. The Tribunal also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014), which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014) where analogous issues were discussed.

27. The Tribunal considered whether, in the circumstances of this case, the information that the applicants meet the requirements for the grant of the visas is likely to be forthcoming and whether the applicants have had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicants.

28. The Tribunal is satisfied that the invitation to give comments or respond was properly sent to the correct email address, being the last address provided in connection with the review. The Tribunal had regard to the fact that the application made by the applicants for the visas was refused by the Department on 27 September 2017 because the delegate concluded that the applicants had not demonstrated that there was an approved nomination. The applicants submitted a copy of the primary decision record with the review application. The Tribunal observes that the applicants have been aware for approximately 39 months of the reasons for the refusal of their application for the visas. The information in the letter dated 14 December 2020 that the Tribunal received from the applicants’ representative also indicates that the applicants are aware of the reasons for the refusal of their application for the visas. The applicants did not request additional time to provide further evidence to support the review application.

29. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicants have had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal is not disposed to delay making a decision indefinitely.

30. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review further to allow the applicants additional time to demonstrate that they meet the requirements for the grant of the visas.

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

    Nomination of a position

32. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

33. In addition, this criterion also requires that:

    ·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 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.

34. In this case the applicant applied for a Subclass 186 visa on the basis of the nomination application lodged by INUS Australia Pty Ltd in respect of the applicant, being the nomination referred to in cl.186.223(1) of Schedule 2 to the Regulations. The nomination application was lodged with the Department on 7 July 2016. The nomination application was refused by a delegate of the Minister on 3 August 2017. As a consequence, on 27 September 2017 the applicant’s Subclass 186 visa was refused by the delegate on the basis that there was no approved nomination.

1. The decision of the delegate to refuse the nomination application lodged by INUS Australia Pty Ltd was affirmed by the Tribunal on 30 November 2020. This means that the matter has been finally determined and there is no approved nomination as required under cl.186.223(2) of Schedule 2 to the Regulations. As a result, the requirement in cl.186.223(2) of Schedule 2 to the Regulations is not satisfied.

2. Therefore, cl.186.223(2) of Schedule 2 to the Regulations is not met.

3. The Tribunal finds that the second named applicant (the applicant’s partner), the third named applicant (the applicant’s son), the fourth named applicant (the applicant’s son) and the fifth named applicant (the applicant’s daughter)  do not meet cl.186.311, which requires them to be a member of the family unit of a person who holds a Subclass 186 visa. There is no evidence before the Tribunal that establishes that the second, third, fourth and fifth named applicants meet the primary visa criteria.

4. The applicants have only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

   DECISION

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

   Amanda Ducrou
   Member

   
   

   ATTACHMENT A

   186.223(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 subregulation 5.19(3); and

   (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

   (c)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 Minister has approved the nomination.

   (3)     The nomination has not subsequently been withdrawn.

   (3A)    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.

   (4)     The position is still available to the applicant.

   (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.