Kim (Migration)

This matter concerned an application by Ms. Kim for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the decision to refuse Ms. Kim's visa application should be affirmed.

The primary legal issue before the Tribunal was whether Ms. Kim met the criteria set out in clause 187.233 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the nominated position for a Cook was the subject of an approved nomination, whether the nominator was the prospective employer, and whether the nomination had been approved and not subsequently withdrawn.

The Tribunal reasoned that clause 187.233(3) requires the Minister to have approved the nomination. In this case, the nomination made by the Company for the position of Cook was refused by the Department. Furthermore, the Company subsequently advised the Tribunal that it wished to withdraw its review application. Ms. Kim failed to provide any response or comment on this information when requested by the Tribunal. As the nomination had not been approved, Ms. Kim could not satisfy the criteria in cl.187.233(3). Since Ms. Kim had only sought to satisfy the criteria for the Direct Entry stream and had failed to meet the essential requirements for that stream, the Tribunal affirmed the decision under review.

The Tribunal affirmed the decision not to grant Ms. Kim a Regional Employer Nomination (Permanent) (Class RN) visa.