Kim (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The primary applicant, Ms. Kim, sought to have a decision of the Department of Immigration and Border Protection, which refused to approve her nominating employer's nomination application, reviewed by the Tribunal. The secondary applicants were family members of Ms. Kim.

The central legal issue before the Tribunal was whether the primary applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994, which requires, among other things, that the nomination for the position be approved by the Minister. The Tribunal also considered whether the secondary applicants could satisfy clause 186.311, which depends on the primary applicant meeting the criteria for the visa.

The Tribunal affirmed the Department's decision not to approve the nomination. It found that the nomination application had been refused by the Department, and this refusal was upheld by the Tribunal on 1 April 2019. As there was no approved nomination, the primary applicant could not satisfy clause 186.223. The Tribunal noted the primary applicant's submissions regarding the reasons for the nomination refusal and difficulties with her former representative, but these did not alter the fact that the nomination itself was not approved. Consequently, the secondary applicants could not satisfy their visa criteria.