Kim (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream. The applicant's employer, LEE’S AAA Pty Ltd, had its nomination application refused by the Department of Home Affairs. The employer sought review of this refusal before the Tribunal. The Tribunal, constituted by Terrence Baxter, was required to determine whether the applicant met the criteria for the visa, particularly in relation to the nominated position.

The primary legal issue before the Tribunal was whether the employer's nomination for the applicant's position as a Butcher was approved and met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the nominated position must be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and for which there is no adverse information concerning the nominator or associated persons, or such information is reasonable to disregard. Furthermore, the position must remain available to the applicant, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal found that while the Department had initially refused the nomination, this decision was set aside on review by the Tribunal itself on 3 December 2019, and a decision to approve the nomination was substituted. Consequently, the Tribunal concluded that clause 186.223 was met in relation to the applicant. Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining visa criteria.