Kang (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The applicant, Mr. Changmo Kang, sought review of a decision to refuse his employer's nomination. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223(2) of the Migration Regulations 1994, which requires that the Minister has approved the nomination. This clause, read in conjunction with subregulation 5.19(3), necessitates that the nominated position be the subject of an approved nomination application that identifies the visa applicant, and that the nomination has not been withdrawn. Further requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal affirmed the decision to refuse the employer nomination. It found that the nominator had failed to satisfy subregulation 5.19(3) of the Regulations. The Tribunal noted that the applicant had been invited to respond to the affirmation of the nomination refusal, and that a failure to satisfy the requirement of an approved nomination would mean the applicant did not meet a criterion for the grant of the visa. The applicant's response focused on his length of residence in Australia and his integration into Australian society, rather than addressing the specific nomination requirements.

Consequently, the Tribunal concluded that as the requirements for the Temporary Residence Transition stream had not been met, the decision under review must be affirmed. The Tribunal therefore affirmed the decision not to grant Mr. Kang an Employer Nomination (Permanent) (Class EN) visa.