Kim (Migration)

[2020] AATA 1044

Kim (Migration) [2020] AATA 1044 (3 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Na Eun Kim
Master Sungyun Cho

CASE NUMBER:  1711624

DIBP REFERENCE(S):  BCC2016/2966487

MEMBER:Terrence Baxter

DATE:3 January 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

·Regulation 2.03AA(2)(b).

Statement made on 03 January 2020 at 9:15am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Program or Project Administrator – Personal Particulars for Character Assessment form – Korean Criminal (Investigation) Records Check Reply provided upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 186.213; Schedule 4 Public Interest Criteria 4001, 4002; r 2.03

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 Immigration to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 September 2016. The criteria for an Employer Nomination (Permanent) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1). In this case, cl.186.213 of Schedule 2 to the Regulations requires the applicant to meet PIC 4001 and 4002. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

4. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

5. 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 Program or Project Administrator for MIC Australia Pty Ltd (the nominator).

6. The delegate refused to grant the visas on 17 May 2017 on the basis that the applicant did not meet r.2.03AA(2)(b) because the Minister had requested the applicant to provide a completed approved Form 80 and the applicant failed to provide that document, and accordingly the applicant had failed to meet paragraph 2.03AA in totality.

7. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 31 May 2017.

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 this case is whether the applicant has provided a completed Form 80.

   Has the applicant provided a completed approved Form 80?

10. The records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) disclose that the Department wrote to the applicant at her then email address (that of her migration agent) on 2 March 2017 requesting that the applicant comply with certain requirements, including that she complete and provide to the Department a Form 80 Personal particulars for assessment including character assessment.

11. The Department’s letter stated under the heading Timeframe for response that the applicant should respond to the request within 28 days after she was taken to have received the letter. The letter also stated that as it was sent by email, the applicant was taken to have received it at the end of the day it was transmitted. The letter further stated that if information was required from another person or organisation, the applicant was allowed to take longer to respond, and set out the steps to be taken by the applicant in those circumstances.

12. On 30 March 2017, the applicant’s migration agent requested an extension of time to provide the requested information to the Department. The migration agent stated that some of the applicant’s family were overseas and that the document preparation was taking longer than the 28 days allowed.

13. On 4 April 2017, the Department notified the applicant’s migration agent that an extension of time until 2 May 2017 had been allowed to provide the requested information.

14. On 2 May 2017, the applicant’s migration agent requested a further extension of time to provide the requested information to the Department. The migration agent stated that the applicants had booked medicals, but the “earliest date” was 15 May 2017, and requested “ample time” to produce the documents.

15. On 8 May 2017, the Department replied to the applicant’s migration agent, noting that one extension of time had already been allowed. The notification also referred to the advice mentioned in paragraph 11 above regarding information required from another person or organisation. The notification stated that any documentation that the applicants were able to provide that did not rely on a third party should have been provided by the previous due date, i.e. 2 May 2017.

16. The delegate then made the decision referred to in paragraph 6 above on 17 May 2017.

17. On 9 December 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting her to comment or respond to information which the Tribunal considered would, subject to her 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:

    The Department Decision Record which you provided to the Tribunal indicates that
    a Department Officer wrote to you on 2 March 2017 requesting further information
    including a completed ‘Form 80 – Personal Particulars for Character Assessment’
    and that you have failed to provide a completed approved Form 80.
    This information is relevant to the review because there is no evidence before the Tribunal that you have provided a completed approved Form 80.

18. On 18 December 2019, the applicant provided to the Tribunal a completed approved Form 80, signed by the applicant and dated 18 December 2019.

19. On 21 December 2019, the applicant submitted an email letter to the Tribunal with accompanying documents. The applicant stated that she had provided the completed Form 80 to her migration agent but that it was not forwarded to the Department. She provided copies of email correspondence between herself and the Department, and between her migration agent and the Department. She also provided a copy of a Criminal (Investigation) Records Check Reply issued by the Korean National Police Agency on 13 December 2019. The applicant stated that she had returned to Korea “last year” with her son and that they now lived together in Korea, but that she would like to return to Australia with her son when her visa issue is resolved.

20. The Tribunal notes that the records of the Department reveal that the appointment of the applicant’s former migration agent ended on 8 May 2017 and that the applicant is not represented by a migration agent in the application to the Tribunal for review.

21. The applicant has provided a completed approved Form 80 and therefore meets r.2.03AA(2)(b).

    Conclusion

22. On the basis of the above findings, the applicant meets r.2.03AA(2)(b).

23. The second named applicant applied on the basis that he is a member of the family unit of the applicant. His application will also be determined on remittal to the Department for reconsideration in light of the Tribunal’s findings in relation the first named applicant.

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

    DECISION

25. The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

    ·Regulation 2.03AA(2)(b).

    Terrence Baxter
    Member