Shin (Migration)

This matter concerned an appeal by the applicants, Miss Yaeseo Shin and Miss Yaerhim Shin, against the refusal of their Subclass 186 Employer Nomination Scheme visas. They sought to qualify as secondary applicants, being members of the family unit of the primary applicant, Hongsup Shin. The primary applicant's visa application was predicated on a nomination lodged by Eye Supply Optometrist Pty Ltd. The dispute arose because the nomination application was refused by the Department, and subsequently, the Administrative Appeals Tribunal determined it lacked jurisdiction to review that refusal due to the nominator's deregistration.

The core legal issue before the Tribunal was whether the applicants satisfied the criteria for a Subclass 186 visa in the Direct Entry stream, specifically clause 186.233 and clause 186.311 of Schedule 2 to the Regulations. Clause 186.233 requires, among other things, that the position be the subject of an approved nomination that has not been withdrawn. Clause 186.311 requires that the secondary applicants be members of the family unit of a primary applicant who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria.

The Tribunal reasoned that the primary applicant, Hongsup Shin, could not satisfy the primary criteria for the Subclass 186 visa because his associated nomination application had been refused, and the Tribunal had no jurisdiction to review that refusal. Consequently, there was no approved nomination as required by clause 186.233(3). As the primary applicant did not hold a Subclass 186 visa granted on the basis of satisfying the primary criteria, the applicants could not satisfy clause 186.311, which requires them to be members of the family unit of such a person. The Tribunal also noted that the applicants had not demonstrated they met the primary visa criteria in their own right.

Accordingly, the Tribunal affirmed the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.