Kim (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream. The applicant sought review of a decision concerning an approved nomination for the position of Electronic Engineering Technician. The Tribunal was required to determine whether the applicant met the criteria for the visa, particularly in relation to the approved nomination.

The central legal issue before the Tribunal was whether the applicant's nomination for the Electronic Engineering Technician position satisfied clause 186.223 of the Migration Regulations 1994. This clause requires, among other things, that the position be the subject of an approved nomination that identifies the visa applicant, that the nominator is the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information known to the Department or that such information is reasonable to disregard, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the applicant's nominating employer, "Base 2," had applied for approval of the position. Although the Department initially refused to approve the nomination, the Tribunal, after considering the applicant's oral evidence confirming his genuine employment and the continued need for his services, set aside the Department's decision and substituted a decision to approve the nomination. The Tribunal was satisfied that the nominator would still employ the applicant, the visa application was lodged within the time limit, and there was no adverse information concerning the nominator. Consequently, the Tribunal concluded that clause 186.223 was met.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The application of a second applicant, who applied as a family unit member, was also to be determined by reference to the outcome of the first applicant's remitted application.