Yi (Migration)

[2022] AATA 2030

Yi (Migration) [2022] AATA 2030 (16 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jin Hee Yi
Ms Hui Pin Lee

REPRESENTATIVE:  Ms Mengpei Gao

CASE NUMBER:  1907267

HOME AFFAIRS REFERENCE(S):          BCC2018/967442

MEMBER:De-Anne Kelly

DATE:16 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 16 June 2022 at 2:11pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Business Liaison Officer – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 28 February 2018. 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 (Cth) (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 Business Liaison Officer ANZSCO 224912.

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 employer nomination lodged by Values And HM Pty Ltd trading as HappyToo was refused being the application referred to in cl.187.233(1).

6. The applicant appeared before the Tribunal on 17 February 2022 to give evidence and present arguments. 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.

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

   Evidence

9. The Tribunal explained that it would consider evidence provided with the original application and subsequently, evidence at hearing and post hearing evidence provided up to 14 days after the hearing or longer if required.

   Interpretation.

10. During the hearing the Tribunal asked the applicant on several occasions if the interpretation was clear and easily understood and was assured that it was. Moreover, the answers to enquires from the Tribunal were in context, again indicating a clear interpretation.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant satisfies cl 187.233(3) which provides.

    (3)       The Minister has approved the nomination.

    Nomination of a position

12. 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.

13. 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 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.

14. On 20 April 2022, the Tribunal affirmed the decision to refuse the employer nomination by Values And HM Pty Ltd trading as HappyToo because the applicant failed to satisfy reg.5.19(4)(d) since the company did not have the financial capacity such that the nominee could be employed in the nominated position full time for at least two years.

15. On 5 May 2022, the Tribunal wrote to the applicant and invited comment on the following information and advised that it had not made up it’s mind. The Tribunal sent a further letter on 1 June 2022 with the same information as follows and invited a response by 15 June 2022.

    On 28 February 2018, you lodged an application for a Regional Employer
    Nomination (Subclass 187) visa with the Department of Home Affairs (then
    called the Department of Immigration and Border Protection) (the Department).

    On 25 January 2019, the nominator, Values and HM Pty Ltd, had their
    nomination application (nomination) refused by the Department. The nominator
    lodged an application for review of this decision with the Tribunal on 14 February
    2019.

    On 20 April 2022, the Tribunal affirmed the Department’s decision to refuse the
    nomination.
    This information is relevant to the review because the primary applicant must satisfy the criteria in clause 187.233 to be granted the visa.

    Clause 187.233 states:
    (3) The Minister has approved the nomination.
    If this criterion is not met, then the visa application cannot be granted.

    We may also subsequently find that the secondary applicants do not meet the secondary visa criterion 187.311 which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa.

16. On 13 June 2022, the applicant wrote to the Tribunal advising that an appeal to the Federal Circuit and Family Court of Australia had been made in respect of the employer nomination affirm of the refusal however it did not address the fact that there was no approved employer nomination.

17. The Tribunal finds there is no approved employer nomination to satisfy cl.187.233(3)

18. Therefore, cl 187.233(3) and cl.187.233 are not met.

19. 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.

20. Ms Hui Pin Lee was a secondary applicant on the application for a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicant lodged an application with the Tribunal to review the decision to refuse the Visa application.

    187.311
    The applicant:
    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 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.

21. The secondary applicant made a combined application with the primary applicant and applied as the partner and therefore as a member of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa. Therefore, the primary applicant is not a person who holds a subclass 187 visa. The secondary applicant is a member of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicant therefore does not satisfy cl.187.311.

22. The secondary applicant does not meet cl.187.311 and the Tribunal affirms the decision not to grant the secondary applicant a subclass 187 visa.

    DECISION

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

    De-Anne Kelly
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.