KIM (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, by Mr Kim. The applicant sought review of a decision to refuse his visa application, which was affirmed by the Tribunal. The core of the dispute revolved around the applicant's eligibility for the visa, specifically whether he could satisfy the criteria set out in clause 187.233 of Schedule 2 of the Migration Regulations 1994.

The legal issues before the Tribunal were whether Mr Kim satisfied the criteria under clause 187.233, which requires, among other things, that the nominated position be located in regional Australia, that the employer be the nominator, that the nomination be approved and not withdrawn, that there be no adverse information known to Immigration about the nominator or associated persons, that the position remain available, and that the visa application be made within six months of the nomination approval. The Tribunal also considered whether Ms Seowon Kim satisfied clause 187.311, though the primary focus remained on Mr Kim's eligibility.

The Tribunal's reasoning centred on the fact that the nomination application lodged by Hervey Bay Japanese Pty Ltd was refused by the Minister on 21 April 2017. Despite being provided with an opportunity to comment on this refusal through a natural justice letter, neither Mr Kim nor Ms Kim responded. Subsequently, the Tribunal affirmed the decision to refuse the nomination. As clause 187.233(3) requires the nomination to have been approved, and the nomination had been refused and this refusal affirmed, Mr Kim could not satisfy this essential criterion for the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas, as the requirements for the Direct Entry stream had not been met.