PARK (Migration)

[2021] AATA 1745

PARK (Migration) [2021] AATA 1745 (25 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms HOYOUNG PARK
Mr DONGHYEOK YU

CASE NUMBER:  1815003

DIBP REFERENCE(S):  BCC2018/956565

MEMBER:Andrew McLean Williams

DATE AND TIME OF

ORAL DECISION AND REASONS:         25 March 2021 at 11:00 am (QLD time)

DATE OF WRITTEN RECORD:                19 April 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions under review.

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223, 457.321

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 7 May 2018 refusing to grant the visa applicants Temporary Business Entry (Class UC) Subclass 457 visas under the Migration Act 1958 (‘the Act’).

2. At the hearing on 25 March 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application to review a decision made by a delegate of the Minister.  The decision under review was made on 7 May 2018.  By that decision, the delegate refused to grant the applicant, Hoyoung Park, a Class UC visa, or subclass 457 visa.  In consequence, the second applicant, Donghyeok Yu, was also refused a visa. 

4. The reason given by the delegate for the refusal was because the primary applicant did not satisfy clause 457.223 of the Migration Regulations. In particular, clause 457.223(4), which requires that the applicant have a nomination application from a prospective employer that had been previously approved by the department or a delegate of the Minister, before the making of the 457 visa application. In this case, the prospective employer was Soul Nara Pty Ltd. On 5 April 2018, a decision was made by a delegate of the Minister to refuse the nomination application lodged by Sol Nara Pty Ltd on behalf of Hoyoung Park.

5. That situation still pertains today. It is still the case that Hoyoung Park does not have a nomination that has been approved by the Minister. In consequence of that, it becomes impossible for Hoyoung Park to satisfy the requirements of clause 457.223(4). In consequence, Dong Yok Yu is unable to satisfy clause 457.321 that specifies that he must be a member of a family unit of a primary applicant who has qualified to hold a 457 visa. Because the primary applicant, Hoyoung Park, does not have an approved sponsor, she is unable to satisfy the requirements of 457.223 and therefore, Donghyeok Yu as a family member of the primary applicant is unable to satisfy the requirements of clause 457.321.

6. The applicant in this review hearing has been unable to put any evidence before the tribunal that shows that the situation that applied when the original decision was made has since changed.  Because of that, the application for review is dismissed, and the tribunal affirms the decision under review.

   DECISION

7. The Tribunal affirms the decisions under review.

   Andrew McLean Williams
   Member