Shin (Migration)

[2021] AATA 2964

Shin (Migration) [2021] AATA 2964 (13 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Yaeseo Shin
Miss Yaerhim Shin

CASE NUMBER:  1830944

HOME AFFAIRS REFERENCE(S):          BCC2017/2123123

MEMBER:Amanda Ducrou

DATE:13 August 2021

PLACE OF DECISION:  Melbourne        

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

Statement made on 13 August 2021 at 1:20pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – secondary applicants members of family unit of primary applicant – primary applicant subject of approved position nomination – related nomination application refused – business deregistered and no jurisdiction for tribunal to review – no appearance at hearing or response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363(1)(b), 363A, 379A(5)

Migration Regulations 1994 (Cth), Schedule 2, cls 186.233(3), 186.311

CASES

Hasran v MIAC [2010] FCAFC 40

Huo v MIAC [2002] FCA 617

Kaur v MIBP [2014] FCA 915

Manna v MIAC [2012] FMCA 28

MIAC v Li [2013] HCA 18

MIBP v Singh [2014] FCAFC 1

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 4 October 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 Labour Agreement stream.

4. In the present case, the first named applicant and the second named applicant (the applicants) applied for the visas on the basis that they are members of the family unit of a person (being the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

5. The delegate refused to grant the visas on the basis that the applicants did not meet cl 186.311 of Schedule 2 to the Regulations because a decision was made by a delegate of the Minister for Home Affairs on 15 June 2017 to refuse to grant a Subclass 186 visa to the person (being Mr Hongsup Shin) who applied for the Subclass 186 visa on the basis of satisfying the primary criteria for the Subclass 186 visa. The delegate noted that the decision to refuse to grant the Subclass 186 visa to Mr Hongsup Shin was made because the requirements of cl 186.233(3) of Schedule 2 to the Regulations were not satisfied. The delegate determined that the applicants are not members of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and, therefore, concluded that the applicants did not satisfy the requirements of cl 186.311 of Schedule 2 to the Regulations.

6. The Tribunal received an application for review from the applicants on 22 October 2018. The Tribunal received a copy of the delegate’s decision record with the application. In the application for review, the applicants nominated Ms Michelle Kim as their representative and authorised recipient for the review.

7. On 24 September 2020 the Tribunal received an Appointment or withdrawal of an authorised recipient form (956A) from the applicants appointing Mr Youn Cho as their authorised recipient to receive all documents relating to the review on their behalf. On 29 September 2020 a Tribunal officer telephoned Mr Cho and informed him that it was not clear, based on the form 956A, whether the applicants had appointed him as their representative for the review as well as their authorised recipient. Mr Cho told the Tribunal officer that he was appointed as the applicants’ representative and as their authorised recipient. The Tribunal officer asked Mr Cho to provide a completed Appointment of Representative/Appointment of Authorised Recipient MR Division form (MR 5) to the Tribunal. Mr Cho told the Tribunal that he would do so and that he would also provide the Tribunal with a contact telephone number for the applicants. On 29 September 2020 the Tribunal received MR 5 forms dated 29 September 2020 signed by the applicants and Mr Cho. The forms state that the applicants appoint Mr Cho to act as their authorised recipient and that they do not wish to appoint him as their representative. The forms were attached to an email from the applicants which included their contact details.

8. On 13 October 2020 the Tribunal wrote to the applicants informing them that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicants to appear by telephone to give evidence and present arguments at a hearing on 16 November 2020 at 1:30pm (NSW time), 1:30pm (VIC time). The letter was sent by email to the applicants via Mr Cho as their authorised recipient at the email address provided in connection with the review.

9. The Tribunal exercised its discretion to hold the hearing by telephone via MS Teams audio. The hearing was scheduled to be held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone via MS Teams audio, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

10. The hearing invitation listed the contact telephone number recorded by the Tribunal for the applicants for the review. The invitation asked the applicants to advise if this is not the correct number or if they would prefer the Tribunal to call them on another number. The invitation set out information about arrangements for the hearing including the estimated duration of the hearing and that a Tribunal officer would contact the applicants close to the hearing time to ensure that the telephone connection is working. The invitation asked the applicants to advise the Tribunal as soon as possible if they would not be able to participate in the telephone hearing. It went on to inform the applicants that if they were not advised that an adjournment was granted, they must assume that the hearing will go ahead. The invitation stated that if the applicants did not participate in the scheduled hearing (that is, if the applicants did not answer their phone at the scheduled date and time) the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear before the Tribunal or may dismiss the application for review without any further consideration of the application or the information before the Tribunal.

11. On 13 November 2020 the Tribunal received an email from Mr Cho. The email forwarded emails from the applicants requesting the postponement of the scheduled hearing on medical grounds. On 16 November 2020 the Tribunal wrote to the applicants. The letter informed the applicants that the Presiding Member had considered the request for the hearing to be postponed but had decided not to postpone the hearing. The letter confirmed that the hearing would proceed as scheduled on 16 November 2020 at 1:30pm (NSW time), 1:30pm (VIC time) and that the Tribunal would call the applicants at the scheduled hearing time on the contact telephone number recorded by the Tribunal for the review. The letter confirmed that all details about the hearing, as set out in the hearing invitation of 13 October 2020, still applied. The Tribunal’s letter also informed the applicants that while the Tribunal’s records listed Mr Youn Cho as their authorised recipient, he had not been appointed as their representative. The letter asked the applicants to complete and return the enclosed MR 5 forms to the Tribunal as soon as possible if they wished to appoint Mr Cho as their authorised recipient and representative. The letter was sent by email to the applicants via Mr Cho as their authorised recipient at the email address provided for the review. A copy of the letter was also sent by email to the email address recorded for the first named applicant.

12. On 16 November 2020 the Tribunal received an email from Mr Cho in response to the Tribunal’s letter stating that the Tribunal’s letter was forwarded to the applicants and that he would advise the Tribunal when he received replies from them. Later, on 16 November 2020, the Tribunal received an email from the second named applicant stating that she and the first named applicant would not be attending the hearing on that day.

13. On 16 November 2020, prior to the scheduled time for the hearing, a Tribunal officer called Mr Cho on the contact telephone number recorded for him. Mr Cho answered the call and advised the Tribunal officer that he was unsure of the applicants’ intention to attend the hearing. He had not heard from the applicants for an extended period of time but did speak to them briefly that morning. The Tribunal officer made four attempts to contact the applicants on the telephone number listed as the contact telephone number for the review, being the same telephone number listed on the hearing invitation. The attempts were made at: 1:21pm, 1:22pm, 1:29pm and 1:31pm (VIC time). Each call was automatically redirected to a recorded voicemail service and on each occasion the Tribunal officer left a message for the applicant to contact the Tribunal for the hearing. At 2:37pm (VIC time) the Tribunal officer made a further attempt and the call was automatically redirected to a recorded voicemail service.

14. It is open to the Tribunal to schedule a hearing for a later date and to invite the applicant to appear and give evidence and present arguments, and the Tribunal considered whether it should do so. The Tribunal is satisfied that the applicants were properly invited to the hearing scheduled for 16 November 2020 in accordance with s 379A(5) of the Act and that they were properly informed that the request for the hearing to be postponed was not granted and the hearing would proceed as scheduled. While the email most recently received from the applicants on 16 November 2020 stated that they would not be attending the hearing, given that when he was contacted Mr Cho remained uncertain about the applicants’ intentions to attend the hearing, the Tribunal considered that it was appropriate to schedule a hearing for a later date and to invite the applicant to appear and give evidence and present arguments.

15. On 17 November 2020 the Tribunal wrote to the applicants inviting them to appear by telephone to give evidence and present arguments at a hearing on 4 December 2020 at 9:30am (NSW time). The letter was sent by email to the applicants via their authorised recipient at the email address provided in connection with the review. The Tribunal exercised its discretion to hold the hearing by telephone via MS Teams audio. The hearing was scheduled to be held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone via MS Teams audio, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective set out above and the delay to the matter if the hearing was not to be conducted by telephone. The hearing invitation contained the same information as the hearing invitation sent to the applicants on 13 October 2020 (as set out at paragraph 10 above).

16. The Tribunal sent the applicants SMS reminders about the hearing five business days (on 27 November 2020) and one business day (on 3 December 2020) before the scheduled hearing. The Tribunal received automated replies that delivery of the SMS reminders had failed. The applicants did not respond to the SMS messages.

17. On 4 December 2020 at the scheduled time for the hearing, a Tribunal officer made three attempts to call the first named applicant on the contact telephone number for the review, being the same telephone number listed on the hearing invitation. The attempts were made at: 9:15am, 9:26am and 9:30am. Each call was automatically redirected to a recorded message advising that the telephone number had been disconnected. The Tribunal officer also made three attempts to call the second named applicant on their contact telephone number. The attempts were made at: 9:18am, 9:21am and 9:27am. Each call was automatically redirected to a recorded voicemail to text service after advising that the person who had been called was unavailable. At 9:16am, 9:20am and 9:28am the Tribunal officer attempted to call Mr Cho on the mobile telephone number recorded for him but each call was automatically redirected to a recorded voicemail to text service after advising that the person who was called was unavailable. At 9:28am the Tribunal officer attempted to call Mr Cho on the landline telephone number recorded for him but the call was automatically redirected to a recorded voicemail service.

18. On 8 December 2020 the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment on or respond to information which it considers would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review. The letter was sent by email to the applicants via Mr Cho as their authorised recipient at the email address provided in connection with the review. The letter provided particulars of the information, namely that the application lodged by Eye Supply Optometrist Pty Ltd, nominating Hongsup Shin in the nominated position of Corporate General Manager (ANZSCO 111211), being the nomination in respect of which Hongsup Shin’s Subclass 186 visa application was made was refused by a delegate of the Department on 29 August 2018 and that on 20 May 2020 the Tribunal (differently constituted) found that the Tribunal does not have jurisdiction to review the nomination refusal because the nominating business had been deregistered and had ceased to exist as a legal entity, and as such, there is no approved nomination and the nominated position is not still available to Hongsup Shin. The Tribunal’s letter explained that this information is relevant to the applicants’ review because it is a requirement for the grant of Hongsup Shin’s Subclass 186 visa that the position specified is the subject of a current approved nomination and that the position is still available to Hongsup Shin and if the Tribunal relies on this information in making its decision, it may find that the position specified in the applicant’s visa application is not the subject of a current approved nomination and the position is not still available to Hongsup Shin and that this would mean that Hongsup Shin does not satisfy a requirement for the grant of the visa. The Tribunal’s letter went on to explain that this would mean that the applicants do not meet the requirements for the grant of the visas as they would not be members of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa as required by the Regulations and that this would be the reason, or a part of the reason, for affirming the decision under review not to grant the applicants’ Subclass 186 visas as there is no evidence before the Tribunal that they meet the primary criteria for the visas in their own right.

19. The Tribunal’s letter invited the applicants to provide their comments or response by 22 December 2020. The letter noted that the applicants could request an extension of time provided that any such request was received by 22 December 2020. The letter explained that if the applicants’ comments or response to the information was not received within the period allowed, or as extended, the Tribunal may make a decision on the review without taking further action to obtain their views on the information and that the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the invitation to give comments or response was properly sent to the correct email address. The invitation was not returned as undeliverable mail.

20. The Tribunal did not receive comments or a response, or a request for an extension of time to provide comments or a response from the applicants, or from any other person authorised by the applicants by 22 December 2020.

21. The applicants have not provided their comments or response within the prescribed period and no extension has been granted. In these circumstances, s 359C of the Act applies and pursuant to s 360(3) of the Act, the applicants are 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

22. The Tribunal considered whether it should adjourn the review under s 363(1)(b) of the Act to allow the applicants additional time in which to provide further evidence to support the review application.

23. In doing so, the Tribunal had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to defer its decision making processes indefinitely. The Tribunal also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014), which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014) where analogous issues were discussed.

24. The Tribunal considered whether, in the circumstances of this case, information that the applicants meet the requirements for the grant of the visas is likely to be forthcoming and whether the applicants have had a fair opportunity to provide relevant information or documents already, and the significance of the information or documents to the applicants. The Tribunal had regard to the fact that the application made by the applicants for the visas was refused by the Department on 4 October 2018 because the delegate concluded that the applicants had not demonstrated that they meet the requirements of cl 186.311 of Schedule 2 to the Regulations, which requires the applicants to be members of the family unit of a person who holds a Subclass 186 visa and that the applicants had not demonstrated that they meet the primary criteria for the visas. The applicants submitted a copy of the primary decision record with the review application. The Tribunal observes that the applicants have been aware for more than 34 months of the reasons for the refusal of their application for the visas. They have not requested additional time to provide information to support their review application.

25. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicants have had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if or when the applicants may provide any further information in support of their review application and whether and when they may comment on or respond to the information particularised in the Tribunal’s letter of 8 December 2020. The Tribunal is not disposed to delay making a decision indefinitely.

1. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review further to allow the applicants additional time to demonstrate that they meet the requirements for the grant of the visas.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The issue in the present case is whether the applicants are members of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

4. Clause 186.233 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. 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.

5. 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 reg 1.13A and reg 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.

6. Relevantly to this case Hongsup Shin applied for a Subclass 186 visa on the basis of the nomination application lodged by Eye Supply Optometrist Pty Ltd in respect of Hongsup Shin, being the nomination referred to in cl 186.233(1) of Schedule 2 to the Regulations. The nomination application was lodged with the Department on 26 May 2017. The nomination application was refused by a delegate of the Minister on 29 August 2018. As a consequence, on 4 October 2018 Hongsup Shin’s Subclass 186 visa was refused by the delegate on the basis that there was no approved nomination.

7. Eye Supply Optometrist Pty Ltd applied to the Tribunal for review of the decision made on 29 August 2018 to refuse the nomination application. However, on 20 May 2020 the Tribunal determined that it does not have jurisdiction to review the decision to refuse the nomination application, as the nominator had been deregistered and ceased to exist as a legal entity. This means that the matter has been finally determined and that there is no approved nomination as required under cl 186.233(3) of Schedule 2 to the Regulations. As a result, the requirement in cl 186.233(3) of Schedule 2 to the Regulations is not satisfied.

8. Therefore, cl 186.233 is not met.

9. The applicants made a valid combined application for Subclass 186 visas, with Hongsup Shin being the primary visa applicant. However, as Hongsup Shin’s Subclass 186 visa was refused because there is no approved nomination, the applicants do not satisfy the requirements of cl 186.311 of Schedule 2 to the Regulations. Clause 186.311 as applicable in this case is set out in an attachment to this decision and requires the applicants to be members of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. The Tribunal is not satisfied based on the oral and documentary evidence that the applicants (namely, Miss Yaeseo Shin and Miss Yaerhim Shin) meet the primary visa criteria in their own right.

10. Therefore, cl 186.311 is not met.

11. The applicants have only sought to satisfy the criteria for a Subclass 186 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.

    DECISION

12. The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Amanda Ducrou
    Member

    
    

    ATTACHMENT A

    186.233(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)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114B(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 not more than 6 months after the Minister approved the nomination.

    186.311The applicant:

    (a)is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)     made a combined application with the primary applicant.