Ko (Migration)

[2021] AATA 108

Ko (Migration) [2021] AATA 108 (16 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Myeongji Ko
Mr Jin Young Choi

CASE NUMBER:  1813409

HOME AFFAIRS REFERENCE(S):          BCC2016/3102568

MEMBER:K. Chapman

DATE:16 January 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.233 of Schedule 2 to the Regulations.

Statement made on 16 January 2021 at 6:46pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry scheme – subject of approved nomination – refusal of related position nomination set aside on review – member of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 5.19(4), 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 Home Affairs on 3 May 2018 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 first named applicant, Ms Myeongji Ko, applied for the visa on 19 September 2016, including the second named applicant in the application. 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 first named applicant (hereafter ‘the applicant’) is seeking the visa in Direct Entry stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111). That position was nominated by TC Growth Pty Ltd T/A Wara Sushi (‘the nominator’), the applicant’s employer. The nominated position is located in Townsville, Queensland.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination by the original nominating employer, which has not been withdrawn and with the position still being available to her. The delegate found that the nomination made by the nominator had been refused on 3 April 2018. Additionally, the second named applicant was refused the visa given he was not a member of the family unit of a person who met the primary visa criteria and there was no evidence that he met the primary visa criteria in his own right. On 9 May 2018, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application for review.

6. The applicant appeared by telephone before the Tribunal on 19 November 2020 to give evidence and present arguments. The applicant confirmed that she was comfortable participating in the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies cl.187.233.

   Nomination of a position

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 the applicant 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 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. The applicant gave oral evidence to the Tribunal indicating that she is genuinely employed by the nominator in the role of Café or Restaurant Manager and that they continue to require her services in Townsville, Queensland. She has been so employed since 2016, noting she is currently in the latter stages of maternity leave following the birth of a child. The evidence before the Tribunal suggests that the applicant will remain employed by the nominator for at least the next two years.  

12. On 16 January 2021, the Tribunal set aside the Department's decision concerning the application for nomination and substituted a decision to approve the nomination in respect of the nominator under r.5.19(4) (see AAT matter 1810397). The evidence before the Tribunal indicates that the original nominator will still employ the applicant in the position in Regional Australia and will proceed with the nomination, in addition to the visa application having been made within the requisite time frame. Further, there is no evidence of adverse information in relation to the nominator.

13. Therefore, cl.187.233 is satisfied by the applicant. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas.

14. The Tribunal finds that as the second named applicant applied for the visa on the basis of being a member of the family unit of the applicant, his application will be determined by reference to the outcome of the latter’s application on remittal to the Department for reconsideration. The Tribunal notes that the second named applicant is the partner of the applicant. Further, the Tribunal notes that the applicant has given birth to a child in Australia and recommends that she advise the Department of the child’s particulars as soon as is practicable.

    DECISION

15. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.233 of Schedule 2 to the Regulations.

    K. Chapman
    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.