Kim (Migration)

[2018] AATA 3756

Kim (Migration) [2018] AATA 3756 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Taehoon Kim
Mrs Miyoung Lee
Mr Euijin Kim
Mr Seongjin Kim
Mr Myungjin Kim

CASE NUMBER:  1714627

DIBP REFERENCE(S):  BCC2016/3776617

MEMBER:Stavros Georgiadis

DATE:2 July 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 02 July 2018 at 3:18pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Temporary Residence Transition stream – Electrical Equipment Trades Worker – No approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 5.19, Schedule 2, cls 187.223, 187.311

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 11 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). 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Electrical Equipment Trades Worker (ANZSCO 342313). This stream is designed for Subclass 457 visa holders who have worked for their employer for at least the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations as the nomination for the position was not approved at the time of the delegate’s decision - 187.223(2). The delegate also considered that the second named applicant is not a member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore did not satisfy cl.187.311.

6. The applicants appeared before the Tribunal on 2 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the Trustee, Ms Yeong Sook Song, appeared on behalf of the applicant together with former Manager, Ms Sunjoo Park. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

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 visa applicants meet the criteria for grant of the (Class RN) visas.

   Nomination of a position

10. Clause 187.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

11. 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); or it is reasonable to disregard any such information

    ·the position is located in regional Australia (as defined in r.5.19(7))

    ·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 has examined the visa applications on the Department file and notes that the required declaration has been made in relation to the position nominated by the employer sponsor. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who will employ the applicant as a Subclass 457 visa holder is the nominator in the application for approval, the TRUSTEE FOR SONG TRADING GROUP TRUST. Thus the first named applicant meets cl.187.223(1)).

13. The oral evidence before the Tribunal from the applicant and the sponsoring employer is that the position has not been subsequently withdrawn and is still available to him (cl.187.223(3) and cl.187.223(5)). 

14. The Tribunal accepts the oral evidence that the position is located in South Australia and therefore, satisfies the regional Australia location requirement in cl.187.223(4) which covers the whole State of South Australia. 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).

15. On 2 July 2018 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19 in the related AAT case-file number 1709982 for the reasons set out in the Decision Record for that case dated 2 July 2018, refusing the nomination.

16. At the hearing, the Tribunal put to the applicants that without an approved nomination, the first named applicant would not meet necessary criteria to satisfy cl.187.223 (specifically cl.187.223(2)) for the grant of the visa and that their applications would, on that basis, be unsuccessful. The Tribunal took steps again at the end of the hearing to ensure that the applicants understood this.  The applicant responded when asked, that the applicants understood and accept that in circumstances where the nomination for the position is not approved, it would not be open for their visa applications to be successful given approval of the nomination is an essential requirement for the grant of the visas.

17. Having considered the available evidence before it, the Tribunal is satisfied that the position of Electrical Equipment Trades Worker (ANZSCO 342313) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.223(2). The Tribunal finds that the nomination of the position to which the application relates is not approved.

18. Therefore, cl.187.223 is not met.

19. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other  visa streams (Direct Entry). 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.

20. The Tribunal finds that the remaining visa applicants named in the application (the applicant’s spouse and children) are not members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore, do not satisfy cl.187.311.

    DECISION

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

    Stavros Georgiadis
    Member