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

1. 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).

2. 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.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. 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.

5. 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.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

7. 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

8. 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?

9. 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.

10. 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.

11. 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.   

12. 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. “

13. 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 8^th January 2016 as a First Class Welder.

    On 21^st 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.”

14. The delegate considered that the applicant did not engage in a genuine effort to be engaged in employment as a welder, as the delegate found that he had not managed to “secure any position of employment within the entire state of Western Australia”, noting that all or Western Australia is a designated regional area.

15. The applicant says that s.137Q(2)(b) does not impose upon him a requirement to find further alternative employment in a designated regional area. Rather, he says that he was obligated to make a genuine effort to complete the two year period with Proweld Constructions, and that his failure to do so was because of a situation beyond his control.

16. The Tribunal accepts that Proweld’s termination of the applicant’s employment, due to an economic downturn, was outside of the applicant’s control.

17. At the hearing, and in his written submissions, the applicant’s representative has drawn the Tribunal’s attention to the decision in Parekh (Migration) [2018] AATA 2713 (23 May 2018). In Parekh, the Tribunal (at [67]) was called upon to interpret s.137Q(2), and to determine whether the “employment” referred to in s.137Q(2)(b) is the employment referred to in the relevant employer nomination.

18. As a matter of statutory construction, the phrase “the employment” in s.137Q(2)(a)(i), in combination with the phrase “that employment” in s.137Q(2)(a)(ii) and s.137Q(2)(b), suggests each reference to “employment” in s.137Q(2) is a reference to the employment to which the relevant employer nomination relates.

19. This interpretation is supported by stated intention of the provision which was introduced by the Migration Legislation Amendment (Integrity of Regional Migration Schemes) Act 2001 and is reflected in the Department’s current Procedural Instruction – Visa cancelation instructions: Regional sponsored employment visas at ‘Genuine effort’:

    “In assessing whether the visa holder has made a genuine effort, the delegate should consider:

    ·the visa holder’s reasons for, and/or circumstances leading to, the failure to commence work or to complete the two year employment period (family or personal considerations may be a factor under these circumstances)

    ·the possibility that the visa holder, in collusion with the employer, did not commence work within the six month period or resigned shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia

    ·in the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment and

    ·any other matter which is relevant to the commencement or termination of the employment.

    A visa holder may be able to satisfy the delegate that they have made a genuine effort if the failure to commence or complete the two year employment period was because of a situation beyond the visa holder’s control. Examples include:

    ·the position was not filled or did not remain viable due to a serious downturn in business activity or

    ·financial loss, bankruptcy or closure of the business.”

20. In the Tribunal’s view, the applicant’s representative’s submission about the requirement in s.137Q(2)(b) is correct. Further, the Tribunal agrees with the representative’s submission that making a genuine effort to be engaged in a further employment arrangement within a designated regional area is not a requirement of s.137Q(2).

21. 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

22. 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.

23. The Tribunal has no jurisdiction with respect to the other applicant.

    Bridget Cullen

    
    

    Member