Kim (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 186 Employer Nomination Scheme visa (direct entry stream) by Ms Ji A Kim, with Mr Ki Hoon Anh as a member of her family unit. The dispute centred on the refusal of the applicant's visa application, which was linked to an employer nomination application that had also been refused. The Tribunal was asked to determine whether the decision under review, which affirmed the refusal of the visa application, should be upheld.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994, specifically concerning the approval of the nominated position. This clause requires that the position be the subject of an approved nomination, that the nominator be the prospective employer, that the nomination has not been withdrawn, and that certain conditions regarding adverse information and the timing of the visa application relative to the nomination approval are met. A secondary issue arose regarding Mr Anh's eligibility as a family unit member if Ms Kim did not meet the primary criteria.

The Tribunal reasoned that the employer nomination application, lodged on 13 December 2017, was refused on 15 June 2019. The nominator sought review of this refusal, and on 24 January 2023, the Tribunal affirmed the decision not to grant the nomination. This affirmation meant that the nomination was not approved, and therefore, the requirement under clause 186.233(2) that the nomination be approved could not be satisfied. The Tribunal notified the applicants of this information and invited submissions, indicating that if this information was relied upon, it would lead to the affirmation of the decision under review.

Consequently, the Tribunal affirmed the decision under review. The failure to have an approved nomination meant that Ms Kim did not meet the criteria for the visa. As a result, Mr Anh, as a family unit member, also could not meet the secondary visa criterion requiring him to be part of a family unit where the primary applicant satisfies the visa criteria.