Kim (Migration)

[2018] AATA 5697

Kim (Migration) [2018] AATA 5697 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Miri Kim

CASE NUMBER:  1822699

HOME AFFAIRS REFERENCE(S):           BCC2016/3960971

MEMBER:Katie Malyon

DATE:18 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 18 December 2018 at 11:37 am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Cook – no approved nomination – not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 359A, 360, 363A
Migration Regulations 1994, r 1.13, Schedule 2, cls 187.233

CASES
Hasran v MIAC [2010] FCAFC 40
Singh v MIBP [2017] FCAFC 105

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 applicant, South Korean national Ms Miri Kim, a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Kim applicant applied for the visa on 24 November 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).  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, Ms Kim is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook.  Ms Kim was represented in relation to the review by her registered migration agent.

5. The delegate refused to grant the visa on the basis Ms Kim did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application made by her prospective employer was refused by the Department. A copy of the delegate’s decision was provided to the Tribunal.

   Background

6. Ms Kim was nominated to fill the position of Cook by her prospective employer, Nickel to Dime Pty Ltd (the Company).  The Company’s nomination was refused by the Department on 21 June 2018.  As a result, the Department refused Ms Kim’s Subclass 187 visa application.  The Company sought review of the delegate’s refusal of its nomination in related matter number 1819534.  On 19 November 2018, the Company advised the Tribunal that it had withdrawn its review application in respect of the position of Cook for Ms Kim and the Tribunal accepted its withdrawal.

7. Accordingly, on 3 December 2018, the Tribunal wrote to Ms Kim pursuant to s.359A of the Act inviting her to comment on, or respond to, information which would, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse her Subclass 187 visa application. Ms Kim was informed the Company had advised the Tribunal that it had withdrawn its review application in respect of the delegate’s decision to refuse its nomination of the position of Cook for her, and the Tribunal had accepted its withdrawal. As a result, there is no approved nomination by the Company in relation to her. In the circumstances, her Subclass 187 visa application could not meet the criteria in cl.187.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

8. The Tribunal’s letter to Ms Kim was sent to the representative who lodged her review application with the Tribunal.  Ms Kim was requested to provide any comments or response to the information in the Tribunal’s letter on or before 17 December 2018.  No response has been received from Ms Kim, or her representative.

9. As Ms Kim has not provided any response to the Tribunal’s s.359A letter, s.359C of the Act applies and, pursuant to s.360(3) of the Act, she is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

11. Clause 187.233 of Schedule 2 to the Regulations, as applicable in this case, is set out in the Attachment to this decision.  Essentially, it requires that the position to which the application relates must 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.  

12. 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.

13. As noted above, the Company’s nomination was refused by the Department and, subsequently, it advised the Tribunal that it wished to withdraw its review application before the Tribunal. Ms Kim has failed to provide any response to, or comment on, this information when requested to do so by the Tribunal in its s.359A letter. In the circumstances, as the nomination made by the Company for the position of Cook to which Ms Kim’s Subclass 187 visa application relates has not been approved, it follows that she does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations. Therefore, cl.187.233 of Schedule 2 to the Regulations is not met.

14. Ms 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 stream.  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

15. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from the Migration Regulations 1994

    Schedule 2

    ..
    
    

    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.

    oOOo