Kim (Migration)

[2023] AATA 3645

Kim (Migration) [2023] AATA 3645 (17 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sun Kyung Kim
Mr Ho Chul Lee
Miss Yujin Lee

REPRESENTATIVE:  Mrs Sun Mi Hislop (MARN: 1383279)

CASE NUMBER:  2006621

HOME AFFAIRS REFERENCE(S):          BCC2019/5770101

MEMBER:De-Anne Kelly

DATE:17 October 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 17 October 2023 at 11:12am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Retail Manager – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 14 November 2019. 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.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the employer nomination by Towns International Pty Ltd was refused being the application referred to in cl 187.233(1).

6. The applicant advised in writing through her agent on 25 September 2023 that the decision could be made on the papers. As such s360(2) applies and the applicant consents to the Tribunal deciding the review without the applicant appearing before it.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant satisfies cl 187.233(3) which provides.

   (3)       The Minister has approved the nomination.

   Nomination of a position

10. 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.

11. 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.

12.   The Tribunal notes that when the employer nomination was refused the employer lodged a review application with the Tribunal which was affirmed as refused on 1 September 2023. As such there is not an approved employer nomination to satisfy cl. 187.233(3) and this may be part or all of the reason to affirm the decision to refuse the visa application by the primary and secondary applicants.

1. There is no approved employer nomination to satisfy cl 187.233(3) and it is not met.

2. Therefore, cl 187.233 is not met.

3. 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.

4. Mr Ho Chul Lee and Miss Yujin Lee were secondary applicants on the application for a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

   187.311
   The applicant:
   (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

   (b) made a combined application with the primary applicant.

5. The secondary applicants made a combined application with the primary applicant and applied as the spouse and child and therefore as members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa. Therefore, the primary applicant is not a person who holds a subclass 187 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicants therefore do not satisfy cl.187.311.

   DECISION

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

   De-Anne Kelly
   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.