KIM (Migration)

[2019] AATA 862

KIM (Migration) [2019] AATA 862 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr ILJOO KIM
Ms SEOWON KIM

CASE NUMBER:  1712638

HOME AFFAIRS REFERENCE(S):       BCC2016/2392594

MEMBER:Ian Berry

DATE:4 March 2019  

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 04 March 2019 at 10:09am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or restaurant manager – subject of an approved nomination – nomination application refused – decision under review affirmed

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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 18 July 2016. 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 (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 applicant (Mr Kim) is seeking the visa in Direct Entry stream, to work in the nominated position of Café or restaurant manager.

5. The delegate refused to grant the visas because Mr Kim did not meet cl.187.233 of Schedule 2 to the Regulations because his nominator had its nomination application refused by the Minister. Such refusal was made on 21 April 2017.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether Mr Kim can satisfy the criteria contained in clause 187.233 of Part 187 contained in Schedule 2 of the Regulations. If Mr Kim satisfies that criteria then does Ms Seowon Kim (Ms Kim) satisfy clause 187.311.

9. 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 Mr Kim in relation to the position.

10. 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 r.1.13A and r.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.

11. On 21 April 2017, the nomination application by Hervey Bay Japanese Pty Ltd was refused by the Minister. The departmental file revealed that a ‘natural Justice’ letter was emailed to Mr Kim (and Ms Kim), through their migration agent, inviting him and the other applicants to comment on Mr Kim’s employer’s nomination being refused.

12. The Minister did not receive a response to the 21 April 2017 natural Justice letter.

13. Mr Kim, as he is entitled to do, applied to have the Minister’s decision reviewed as did the other applicants. On 13 February 2019, the Tribunal emailed Mr Kim inviting him (with his family members who were also affected by the Minister’s decision), to comment or provide information to the particulars set out in that letter namely

    “On 12 February 2019, the Tribunal affirmed the decision to refuse the nomination lodged by Hervey Bay Japanese Dining Pty Ltd. This is the nomination referred to in your application for the purposes of Subclause 187.233(1) of the Migration Regulations 1994.”

14. This letter also set out the consequences upon the tribunal accepting the adverse information outlined in the letter (as set out above). The letter stated

    “This information is relevant to the review as Subclause 187.233(3), in Schedule 2 of the Migration Regulations 1994 requires that the nomination be approved. As the Tribunal affirmed the decision to refuse the nomination, it follows that you do not meet Subclause 187.233(3).

    If we rely on this information in making our decision, the Tribunal will have no choice but to affirm the decision to refuse the grant of a Regional Employer Nomination (Permanent) visa

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

15. The letter invited Mr and Ms Kim to comment or respond by 27 February 2019. Neither Mr Kim nor Ms Kim responded at any time.

16. There was not any evidence upon which the Tribunal could be satisfied that either Mr Kim or Ms Kim had satisfied either Subclause 187.233(3) or 187.311. Without any evidence the Tribunal finds that clause 187.233 is not met.

17. Without a decision approving the Mr Kim’s application, the Tribunal must find that Ms Kim who is the subject of the application for review by Mr Kim, does not satisfy the criteria in clause 187.311 of Schedule 2 to the Regulations.

18. Therefore, cl.187.233 and cl.187.311 are not met.

19. Mr Kim 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.

    DECISION

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

    Ian Berry
    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

    (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.