Yoon (Migration) - [2018] AATA 3621

Yoon (Migration) [2018] AATA 3621 (24 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Sang Won Yoon
Mrs Jiyun Lee
CASE NUMBER:  1708331
HOME AFFAIRS REFERENCE(S):           BCC2016/2157230
MEMBER:Bridget Cullen
DATE:24 August 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 24 August 2018 at 5:56pm

CATCHWORDS
Migration – Cancellation – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Whether the applicant made a genuine effort to commence employment with the sponsor – Where applicant was made redundant owing to economic conditions – Applicant made a genuine effort to commence the employment outlined in the nomination – Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth), ss 137Q, 137T, 348
Migration Regulations 1994 (Cth), r 25.0AA
CASES
Parekh (Migration) [2018] AATA 2713
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 April 2017 to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.137Q(2) on the basis that the applicant's employment referred to in the relevant employment nomination was terminated within the required two year period and the applicant was unable to satisfy the delegate that she had made a genuine effort to be engaged in the employment for the required period.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act. As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicants appeared before the Tribunal on 9 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 3621
Decision Date: 24 August 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Subclass 187 (Regional Sponsored Migration Scheme) visa held by Mr. Yoon. The Minister had exercised the power under s.137Q of the Migration Act 1958 to cancel the visa, alleging that the visa holder had not made a genuine effort to be engaged in the employment for which the visa was granted for the required two-year period. The applicant contended that the termination of his employment was due to economic conditions beyond his control and that he had made a genuine effort to remain employed.

The Tribunal was required to determine whether the ground for cancellation under s.137Q(2) of the Act had been established. Specifically, the Tribunal had to assess whether the applicant had commenced the nominated employment, whether that employment terminated within two years of commencement, and crucially, whether the applicant had satisfied the Minister that he made a genuine effort to be engaged in that employment for the required two-year period. The visa was granted on 21 October 2015, and the applicant commenced employment as a First Class Welder with Proweld Constructions on 8 January 2016. His employment terminated on 27 May 2016, approximately four months after commencement.

The Tribunal found that Proweld Constructions had provided a statement indicating that the termination was due to a significant economic downturn affecting the business, leading to a redundancy. Further clarification from the employer confirmed that the downturn in the WA mining and manufacturing industries in 2016 necessitated a reduction in fulltime employees and that meetings were held with the applicant to assist him in seeking alternative employment. The employer also stated that the applicant had made a genuine effort to remain with Proweld Constructions for the required two-year period. Based on this evidence, the Tribunal concluded that the applicant had made a genuine effort to be engaged in the nominated employment, and therefore, the ground for cancellation under s.137Q(2) was not satisfied.

Consequently, the Tribunal set aside the decision to cancel Mr. Yoon's Subclass 187 visa and substituted a decision not to cancel the visa. The Tribunal noted it had no jurisdiction with respect to any other applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE Under s.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).Does the ground for cancellation exist? Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period. The applicant has provided to the Tribunal a copy of the delegate's record of decision to cancel the visa under s.137Q of the Act. It sets out the following information. The applicant was sponsored to be employed as a First Class Welder by Proweld Constructions located in Western Australia. The contact person listed on the Application for- Employer Nomination under Regional Sponsored Migration Scheme is Mick Robinson. The visa was granted on 21 October 2015, and the applicant worked in the role, in Jandakot, Western Australia, for approximately 4 months from 8 January 2016 to 27 May 2016. The applicant says that his role with Proweld became redundant, and the circumstances surrounding termination of employment were outside his control. A written statement from Proweld Constructions dated 21 June 2016 highlights the circumstances surrounding the termination:“Due to the significant economic downturn we are currently experiencing, we regret we are unable to continue to offer Mr Sang Won YOON ongoing employment.We therefore intend to terminate our 187 Visa sponsorship of Sang Won YOON. “ On 13 March 2017, the Contact Person listed on the Application, Mr Michael Robinson (Mick), sent further clarification to the Department:“We are writing in response to a “Notification of Proposed Visa Cancellation” letter received by Sangwon Yoon on 06 March 2017.Sangwon commenced employment with us on 8th January 2016 as a First Class Welder.On 21st June 2016, we advised the Department of Immigration and Border Protection that we and Sangwon had mutually decided to end his employment due to the poor economic climate at the time. The downturn in the WA mining and manufacturing industries in 2016 meant that the business was unable to maintain the same number of fulltime employees. We held a number of meetings with Sangwon so he could seek alternative employment.Sangwon did make a genuine effort to remain with Proweld Constructions for the required employment period of 2 years from the date of his Regional Employer Nomination (class RN) Regional Employer Nomination (subclass 187) Visa being granted on 27 October 2015.”

Decision

Reasons for decision

For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q exists. It follows that the power to cancel the applicant’s visa does not arise. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa. The Tribunal has no jurisdiction with respect to the other applicant.Bridget CullenMember

Ratio Decidendi

Legal Principle Established

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