Yun (Migration)

[2019] AATA 3814

Yun (Migration) [2019] AATA 3814 (27 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ina Yun
Mr Seonghwan Jeon

CASE NUMBER:  1803616

HOME AFFAIRS REFERENCE(S):           BCC2016/3714467

MEMBER:Nicola Findson

DATE:27 June 2019

PLACE OF DECISION:  Perth

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

Statement made on 27 June 2019 at 10:03am

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Sponsored Migration Scheme) – Direct Entry stream – Chef – subject of an approved nomination – nomination application withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 (the Act).

2. The applicants applied for the visas on 7 November 2016. 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 (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 Direct Entry stream, to work in the nominated position of ‘Chef’.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.233(3) of Schedule 2 to the regulations because the nomination lodged in respect of the applicant was withdrawn and therefore not approved.

6. The applicants appeared before the Tribunal on 17 April 2019 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 by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. The issue in the present case is whether the applicants meet the requirements of cl.187.233.  For applicants in the Direct Enrty stream, cl.187.233 requires that that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination).  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.  In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5,19(4)(a)(ii).

10. 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 r.1.13A and r.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.

11. The applicant has provided to the Tribunal a copy of the delegate’s decision record for the purpose of the review.  It records that the nomination application of which the applicant was the subject, lodged by TopCity Pty Ltd acting for The McCabe Family Trust, was withdrawn on 5 December 2017.   Accordingly, the delegate found that the nomination was not approved and cl.187.233(3) was not met.

12. Prior to the hearing, the applicant’s representative provided a written submission to the Tribunal, which set out the circumstances in which TopCity Pty Ltd acting for The McCabe Family Trust had withdrawn its nomination.  The submissions indicate that the applicant’s employment was unfairly terminated by TopCity Pty Ltd acting for The McCabe Family Trust, after the applicant complained of workplace misbehaviour and sexual harassment against her.  The Tribunal was provided with documentary evidence corroborating these claims made by the applicant against her nominating employer.  The submission states that the applicant had looked for another sponsorship opportunity, and another company - Far East Restaurant Pty Ltd trading as Twisted Chopsticks - had indicated to the applicant that it would sponsor her under the Subclass 482 visa stream. However, this opportunity did not eventuate because although the nomination was approved by the Department, the company’s business sponsorship was subsequently cancelled.  Therefore, the applicant had no ability to proceed with making application for a Subclass 482 visa.

13. The applicant also provided her own statement regarding her migration history and the background to her employment with Topcity Pty Ltd acting for The McCabe Family Trust.  In summary, the applicant and her husband first arrived in Australia in 2009 holding working holiday visas.  The applicant has undertaken Diploma studies in Australia and intends pursuing a career in cooking.  Her statement indicates that she experienced sexual harassment, racial discrimination, and bullying during her employment with TopCity Pty Ltd acting for The McCabe Family Trust. She sets out that her employer constantly harassed, bullied and threatened to withdraw its sponsorship of her, despite her doing her very best to do her job well.  At the hearing the applicant explained that working for this employer had been exhausting and extremely stressful. 

14. The delegate’s decision record confirms that TopCity Pty Ltd acting for The McCabe Family Trust withdrew the nomination application on 5 December 2017. At the hearing the Tribunal explained to the applicant that while it appreciated the difficulties she had endured in relation to the withdrawal of the nomination and that it had a great deal of sympathy for her situation, in these circumstances, it is not able to find that the nomination has been approved as required by cl.187.233(3).  The applicant indicated that she understood this.

15. The Tribunal has taken into account all of the written and oral evidence provided to it by the applicants.  It finds that the nominator TopCity Pty Ltd acting for The McCabe Family Trust lodged an application for approval of a nomination, identifying the applicant as the nominee but withdrew the nomination application on 5 December 2017.  Accordingly, the nomination application of which the applicant is the subject has not been approved.

16. For the applicants to succeed in this review, the associated nomination has to be approved.  There is no evidence before the Tribunal that the nomination has been approved.  In fact, it was withdrawn.  As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl.187.233(3) is not met.  It follows that cl.187.233 is not met.  There is no evidence before the Tribunal to indicate the secondary applicant meets the requirements of cl.187.233.

17. 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.

    DECISION

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

    Nicola Findson
    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

    (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.