Noh (Migration)

[2020] AATA 5316

Noh (Migration) [2020] AATA 5316 (15 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Eun Sik Noh
Mr Osang Kweon
Mr Doyoon Kweon
Miss Minseo Kweon

CASE NUMBER:  1805229

HOME AFFAIRS REFERENCE(S):          BCC2016/2351184

MEMBER:Phoebe Dunn

DATE:15 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 15 October 2020 at 4:10pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Retail Manager (General) – no approved nomination – consideration of referral for Ministerial Intervention – contributions to Australian society – members of the family unit – decision under review affirmed           

LEGISLATION
Migration Act 1958, ss 65, 351, 359, 363
Migration Regulations 1994, r 1.13; Schedule 2, cls 187.233. 187.311

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 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 13 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General) (ANZSCO 142111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the related nomination application by Oakey Foodworks Pty Ltd (the nominator) was refused by a delegate of the Minister of 13 July 2016 and as such there was no approved nomination.

6. The nominator applied for review of that decision, but on 22 July 2020 the Tribunal affirmed the decision in relation to the nomination on review.

7. By letter dated 1 September 2020, the Tribunal wrote to the applicants in accordance with s.359A of the Act, setting out the particulars of information that the Tribunal considered, subject to any comments or response from the applicant, would be the reason or part of the reason for affirming the decisions on review. In its letter, the Tribunal outlined the particulars of the information, the relevance of the information and the consequences of the Tribunal relying on the information, stating that on 22 July 2020, the Tribunal affirmed the decision to refuse the nomination application made by the nominator in relation to the applicant and this means that the nomination has not been approved as required by cl.187.233(3) of Schedule 2 to the Regulations.

8. In its letter, the Tribunal stated that this information is relevant to the review because it is a requirement for the grant of the applicant’s Subclass 187 visa that the related nomination application has been approved. The Tribunal stated further that if the Tribunal relies on this information in making its decision, it may find that the applicant is not the subject of a current approved nomination and this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

9. The applicants were invited to comment on or respond to the adverse information, or to request an extension of time in which to do so, by 15 September 2020. In its letter, the Tribunal noted that if the comments or response was not received by the stipulated date or as extended, the applicants would lose any entitlement they may otherwise have had to appear before the Tribunal to give evidence and present arguments, and the Tribunal may make a decision on the review without taking any further action to obtain the applicants’ views on the adverse information.

10. The applicants did not respond to the Tribunal’s letter by the stipulated date and no request for an extension of time to do so was received.

11. The Courts have confirmed that where an applicant fails to provide the requested comments or information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1] Accordingly, as the applicant failed to comment on or respond to the information within the prescribed period, she has lost any right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [1] Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

12. By letter dated 21 September 2020, the Tribunal wrote to the applicants again noting that as the Tribunal did not receive a response to its letter by the due date, or a request for an extension of time within which to respond, the applicants had lost their right to appear before the Tribunal to give evidence and present arguments. The Tribunal further advised that it would not be making a decision on the case before 6 October 2020 and advised that the applicants could provide any information or documents that the applicants think would support their case, including commenting on or responding to the information they were invited to comment on or respond to in the Tribunal’s letter dated 1 September 2020, by 6 October 2020. 

13. In its letter dated 21 September 2020, the Tribunal also noted earlier correspondence received from the applicants which suggested that the applicants wanted the Tribunal to consider their applications for referral for Ministerial Intervention under s.351 of the Act. The Tribunal invited the applicants to make further submissions and provide supporting documentation addressing the guidelines for referral for Ministerial Intervention, by 6 October 2020 and provided the applicants with a link to further information about Ministerial Intervention.

14. By email received on 2 October 2020, the Tribunal received the following response from the applicant:

    I would not like to apply for the Ministerial Intervention under s.351 of the Migration Act. I believe my family members may not be able move to South Korea until around August of next year due to the COVID-19 pandemic conditions. We are living a relatively safe daily life in Toowoomba QLD.

    I hope the members consider my family’s safety and reconsider the granting of my visa. We have paid more than $9000 in taxes after the tax return in the last financial year. I believe my family members are healthy and responsible migrants who came to Australia 11 years ago and have kept on our duties through many challenging situations we have faced.

    If you still decide to refuse my visa, I would like to ask for a certain period of time before the flight for the safety reasons mentioned earlier.

15. The Tribunal notes that it did not receive a substantive comment or response to the adverse information raised in its letter dated 21 September 2020.  The Tribunal has given consideration as to whether it should exercise its discretion under s.359C(2) of the Act to take any further steps to obtain a comment or response from the applicant. The Tribunal has also given consideration as to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to comment or respond.

16. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision‑making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[4] regarding the application of the principles of reasonableness when exercising its discretion, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.

    [2] [2002] FCA 617

    [3] [2012] FMCA 28

    [4] [2013] HCA 18 (8 May 2013)

    [5] [2014] FCAFC 1 (4 February 2014)

    [6] [2014] FCA 915 (28 August 2014)

17. The Tribunal considered whether, in the circumstances of this case, the applicant has had a fair opportunity to comment on or respond to the adverse information already, and the significance of the adverse information to the applicant.

18. In these circumstances, the Tribunal considers that the applicant has had a fair opportunity to comment on or respond to the adverse information or request an extension of time within which to do so, and no response has been received. In these circumstances, the Tribunal has decided to make a decision on the review without taking further action to obtain the applicant’s comments or response on the adverse information in accordance with s.359C(2) of the Act, or to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

21. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

22. 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 of the Regulations), 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.

23. In this case, the related nomination application by the nominator, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister on 8 January 2018 and this decision was recently affirmed by the Tribunal. As such, the related nomination application has not been approved and the applicant is not the subject of an approved nomination as required under cl.187.233(3) of the Regulations. The Tribunal has carefully considered the information before it and finds that cl.187.233(3) is not met.

24. Therefore, cl.187.233 is not met.

    Ministerial Intervention

25. The Tribunal has considered whether the circumstances of this case warrant referral to the Minister under s.351 of the Act. The Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so consistent with s.351 of the Act.

26. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non‑compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

27. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances. The circumstances which may be unique or exceptional include, relevantly:

    ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;

    ·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person;

    ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case (emphasis added).

28. The Tribunal takes the issue of recommending referral of any matter to the Minister seriously. It notes that the theme running throughout the relevant Ministerial Guidelines on this matter is that the case should involve unique or exceptional circumstances which would warrant the Minister’s intervention. The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention.

29. The Tribunal notes that not every case is appropriate for referral, regardless of the contributions made by the individuals or feelings of sympathy for those concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia. The guidelines indicate that the circumstances must be unique or exceptional to warrant consideration.

30. The Tribunal notes that in response to the Tribunal’s letter inviting submission regarding Ministerial Intervention the applicant has not requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act. Instead, the applicants have requested that the Tribunal overturn the decision to refuse the visas on the basis of the applicants’ contributions to Australia and their safety in light of the COVID-19 pandemic or that their return to South Korea be delayed due to the COVID-19 pandemic. The Tribunal notes that the Tribunal’s consideration is limited to reviewing the delegate’s decision to refuse the Subclass 187 visas and the Tribunal does not have the power to grant the applicants the Subclass 187 visas and nor does it have discretion to waive the criteria prescribed in cl.187.233 for the primary applicant or cl.187.311 for the secondary applicants. Accordingly, and notwithstanding that the applicant has not requested a referral for consideration by the Minister under s.351 of the Act, in light of the submissions received from the applicant and the fact that the applicant is not represented, the Tribunal has considered whether it should, nonetheless, refer the matter.

31. The applicant has provided a number of documents which could support a referral, which the Tribunal has considered. This includes the following:

    a.Copies of the applicants’ Temporary Graduate (Subclass 485) visas for the nominated occupation of Accountant (General) (ANZSCO 221111), dated 9 June 2015;

    b.Documents relating to the applicant’s employment at the Oakey Foodworks (the related nominating business), including signed contract of employment dated 27 June 2016, orders and photographs;

    c.Documents evidencing the applicant’s qualifications, including a Bachelor of Commerce with a major in Accounting from the University of Newcastle attained on 5 December 2014, an assessment from CPA Australia that the applicant is academically suitable for a temporary visa Subclass 485 under ANZSCO 221111 – Accountant (General), admission letter from the University of Newcastle dated 14 December 2011; Certificate of Graduation in Japanese Language (College Preparatory Course (1 year)) from Bunka Institute of Language, March 1999; Certificate of Graduation from Dongduk Women’s University, Bachelor of Science, majoring in Clothing Science dated 21 February 1997;

    d.Documents detailing the applicant’s employment and volunteer contributions including:

    i.Letter stating that the applicant was a Volunteer Retail Assistant at Save the Children, Australia’s Toowoomba Store from August 2018 to April 2019;

    ii.Employment reference letter from Brinks Australia Pty Ltd confirming the applicant was employed as an Accountant from May 2013 to October 2014;

    iii.Certificate of Participation in New Lambton South Public School’s Harmony Day 2013 and photographs;

    iv.Salvation Army Volunteer appointment letter dated 1 February 2013 (unsigned);

    v.Employment records, pay slips and qualifications of the applicant’s husband (a secondary visa applicant);

    vi.ABN registration details for the applicant’s husband’s photography business, registered as an Individual/Sole Trader;

    vii.Student reports for the applicant’s children (secondary visa applicants) for Semester 2, Term 3 (2018) from Centenary Heights State High (year 8) and Gabbinbar State School (Year 5);

    viii.Letter of recommendation from David Berry dated 26 July 2019, attesting to the applicant’s work ethic, contributions to Australian society and the community generally;

    ix.Reference letter from a friend of the applicant’s attesting to the applicant’s contributions to the Korean community in Toowoomba, volunteer efforts, work ethic, qualifications and the academic achievements of the secondary applicant children;

    x.Medical records dated 3 September 2019 attesting to the applicant’s fitness to work; and

    xi.Submission from the applicant dated 1 February 2020 attaching pay slips for January 2020 for her husband for his full-time work as a forklift driver at a factory in Toowoomba.

32. The Tribunal has considered whether there are compassionate circumstances regarding the physical or psychological state of the applicants that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the applicants. The Tribunal notes that the applicant has provided details of a health condition that worsened when she received the initial refusal of the Subclass 187 visa, but that her treating doctors have since assessed as not impacting on her capacity to work.  The Tribunal has no other information before it on which to assess referral on this ground.  Accordingly, the Tribunal has decided not to exercise its discretion to refer the matter for consideration of Ministerial Intervention on this ground, noting that the circumstances must be unique or exceptional to warrant consideration by the Minister.

1. The Tribunal has also considered whether the applicant’s circumstances are such that the application of the legislation would lead to an unfair or unreasonable result in this particular case. The Tribunal notes and has carefully considered the evidence submitted to the Tribunal regarding the applicant’s and her husband’s qualifications and employment history in Australia. However, having considered the information before it, the Tribunal has decided not to exercise its discretion to refer the matter for consideration of Ministerial Intervention on this ground, noting that the applicant left the nominating business on her own accord, the position is no longer available to the applicant and the decision to refuse the nomination application was recently affirmed, and further noting that the circumstances must be unique or exceptional to warrant consideration by the Minister.

2. The Tribunal has also considered whether there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.  The Tribunal acknowledges that there will be some impact on the applicant’s husband’s current employer should the applicants return to South Korea. However, aside from pay slips evidencing employment, the Tribunal does not consider it has sufficient documentation and information before it to make an assessment that the matter warrants referral on this ground, noting that the circumstances must be unique or exceptional to warrant consideration by the Minister.

3. The Tribunal has also carefully considered the evidence submitted by the applicant regarding the minor secondary applicants’ school and community involvement.  The Tribunal notes that neither of the minor secondary applicants were born in Australia.  The Tribunal acknowledges that there will be some impact to friends of the minor secondary applicants should the applicants return to South Korea. However, the Tribunal does not consider it has sufficient documentation and information before it to make an assessment that the matter warrants referral on this ground, noting that the circumstances must be unique or exceptional to warrant consideration by the Minister.

4. The Tribunal has considered the applicant’s case and the Ministerial Guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

5. The applicant 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.

6. The only basis of the applications of the second, third and fourth named applicants is that they are members of the family unit of the person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.187.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 187 visa, the decision to refuse the applications of the secondary applicants must also be affirmed because they do not satisfy cl.187.311.

   DECISION

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

   Phoebe Dunn
   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.