Yoo (Migration)

[2021] AATA 2995

Yoo (Migration) [2021] AATA 2995 (27 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jinhyuk Yoo
Ms Seungmi Shon
Master Chaevin Yoo

CASE NUMBER:  1826102

HOME AFFAIRS REFERENCE(S):          BCC2017/2325092

MEMBER:Terrence Baxter

DATE:27 July 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 27 July 2021 at 11:44am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Cook – no approved nomination – request for Ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

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

2. The applicants applied for the visas on 29 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 (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 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 (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook for Platinum KS2 Pty Ltd as trustee for the Platinum KS Trust (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations which required him to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 10 July 2018 and that accordingly the applicant did not satisfy cl 186.223(2) and did not meet cl 186.223 as a whole as required.

6. The delegate also found that the second named and third named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion (cl 186.311) requiring each of them to be a member of the family unit of a person who has met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 7 September 2018.

8. The applicant appeared before the Tribunal on 14 April 2021 to give evidence and present arguments. The hearing was a joint hearing with the hearing of an application for review of a decision to refuse the nomination application by the nominator. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, 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 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 video conference.

10. The applicants were represented in relation to the review by their registered migration agent Mr Shahen Davityan of Verde Lawyers of 507 Kent Street, Sydney (formerly York Immigration Services Australia). The representative attended the Tribunal hearing by video conference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

13. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

14. In addition, this criterion also requires that:

    ·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) 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.

15. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Cook approved, with the applicant as nominee, on 29 June 2017. The nomination application was refused on 10 July 2018 and the nominator sought review of that decision with the Tribunal on 30 July 2018.

16. On 6 July 2021, the Tribunal affirmed the decision not to grant the nomination application.

17. On 9 July 2021, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 6 July 2021, the Tribunal affirmed the decision not to grant an Employer Nomination lodged by Platinum KS2 Pty Ltd ATF The Platinum KS Trust.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.186.223(1).

    If we rely on this information in making our decision, we may find that you do not meet cl.186.223(2), which requires the nomination be approved, and affirm the decision under review.

    We may subsequently find that Ms Shon and Master Yoo do not meet the secondary visa criterion 186.311, 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 and who holds a Subclass 186 visa, and affirm the decision under review in respect of their applications.

    Your comments or response should be received by 23 July 2021.

18. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. On 21 July 2021, the representative wrote to the Tribunal requesting an extension of time to 6 August 2021 to respond to the Tribunal’s invitation. The request for an extension of time to respond to the invitation did not provide any reason why the extension was required but merely stated that the applicants requested the extension to enable them to finalise their response.

19. On the same day, 21 July 2021, the Tribunal advised the applicants that the request for an extension of time did not disclose sufficient reasons for the grant of an extension and that the request had not been allowed. The Tribunal’s letter confirmed that the comments on or response to the invitation should be received by 23 July 2021.

20. On 22 July 2021, the applicants provided to the Department a submission from the applicant dated 22 July 2021 and a submission from the nominator also dated 22 July 2021.

21. The applicant was advised at the hearing on 14 April 2021 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by Platinum KS2 Pty Ltd ATF The Platinum KS Trust.

22. The Tribunal notes that the application for nomination for the position of Cook has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application.

23. Therefore, cl 186.223 is not met in respect of the applicant.

24. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

25. In relation to the second named and third named applicants, the Tribunal notes that cl 186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant be 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. As the applicant has not met the requirements for the grant of a Subclass 186 visa and is not the holder of a Subclass 186 visa, it follows that the second named and third named applicants do not satisfy the requirements of cl 186.311. The Tribunal finds accordingly.

    Request to the Tribunal for referral for Ministerial intervention

26. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

27. At the hearing, the representative made a request for referral for Ministerial intervention in the event that the Tribunal found that the nominator had not satisfied the requirements for approval of the nomination. He submitted that a decision to affirm the refusal of the nomination application would result in unintended consequences of legislation.

28. In deciding whether to refer this matter to the Minister for consideration under s 351 of the Act, the Tribunal has considered the Minister’s guidelines on ministerial powers (the Minister’s Guidelines) contained in the Department’s Procedures Advice Manual (PAM3). The Tribunal notes that the Department’s policy is not binding on the Tribunal, but the Tribunal may refer to it. The Minister’s Guidelines state that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of the intervention powers.

29. Examples of the unique or exceptional circumstances listed in the Minister’s Guidelines include:

    ·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

    ·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

    ·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.

30. In his submission of 22 July 2021, the applicant stated that he had over 10 years’ experience as a Cook, including over seven years’ employment with the nominator. He said that he had performed his duties diligently, as had been confirmed by the spokesperson for the nominator during the hearing. He said that he and his family had resided in Australia since 2014 and that they had complied with all conditions of their visas. He stated that, despite satisfying their visa conditions, the applicants’ future in Australia would now depend on circumstances beyond their control. The applicant renewed the request for referral for Ministerial intervention.

31. The submission from the nominator confirmed the applicant’s employment by the nominator since March 2014 and certified that he had performed his duties to a high level. The submission stated that the applicant was one of the reasons for the nominator’s success in the hospitality industry, particularly during the COVID-19 pandemic.

32. The Tribunal does have sympathy for the applicants in this matter. The Tribunal accepts that the applicant is a valued employee of the nominator. The Tribunal also notes that the reason for the Tribunal’s decision to affirm the refusal of the visa application is in no way related to any actions on the part of the applicants. Although the Tribunal acknowledges that the refusal of the nomination application has had unfortunate consequences for the visa applicants, the Tribunal is not satisfied that these circumstances qualify as unique or exceptional, justifying a referral to the Minister.

33. Having considered all the evidence and submissions, the Tribunal has decided not to refer the matter for possible Ministerial intervention under s 351 of the Act. The Tribunal notes that it is open to the applicants to make a direct request for Ministerial intervention.

    DECISION

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

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.