Kim (Migration)

This matter concerned an appeal before the Tribunal regarding a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, for Mr Kim, who was identified for the position of Chef. The core dispute revolved around whether Mr Kim met the requirements of clause 186.223(2) of the relevant regulations and whether his nomination application had been approved by the Minister.

The Tribunal was required to determine if the nominated position of Chef (ANZSCO 351311) was the subject of an approved nomination application for Mr Kim in the Temporary Residence Transition stream. This involved assessing several sub-criteria: whether the nomination had been approved and not withdrawn, whether there was any adverse information concerning Mr Kim or associated persons, whether the identified position remained available to Mr Kim, and whether Mr Kim's visa application was lodged within six months of the nomination's approval. Additionally, the Tribunal considered whether the secondary applicants, identified as members of Mr Kim's family unit, met the relevant criteria for the visa.

The Tribunal reasoned that it had previously set aside a refusal decision and substituted a decision approving the nomination on 20 February 2019. Based on the evidence presented, including information from the Department's file and the tribunal's own records, the Tribunal was satisfied that the nomination was approved and not withdrawn, no adverse information existed, the position of Chef remained available to Mr Kim under a written employment contract, and his application was made within the prescribed timeframe following the nomination approval. Consequently, the Tribunal found that Mr Kim met the criteria under clause 186.223. The Tribunal also found that the secondary applicants were members of Mr Kim's family unit and had made a combined application with him.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration. The Tribunal directed that Mr Kim met the criteria under clause 186.223, and the secondary applicants met the criteria under clause 186.311, for a Subclass 186 visa.