Bayswater Car Rental Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the approval of a nomination for a Subclass 407 (Training) visa. The applicant, Bayswater Car Rental Pty Ltd (the Company), sought to have a decision to refuse its nomination for Mr. Nkornu as a Transport Company Manager set aside. The AAT, presided over by Member Katie Malyon, had access to more information than the original delegate, including oral evidence from Mr. Carneson and Mr. Nkornu.

The primary legal issue before the Tribunal was whether the Company's nomination met all the applicable requirements stipulated in regulations 2.72A and 2.72B of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the Company was a valid temporary activities sponsor, if the nomination was made in accordance with the prescribed process, and crucially, if Mr. Nkornu would participate in a genuine nominated program. The Tribunal also considered whether Mr. Nkornu possessed functional English and if the nominated program would have adverse consequences for Australian employment opportunities.

The Tribunal reasoned that the Company met the requirements of being a temporary activities sponsor and that the nomination process was correctly followed. Regarding Mr. Nkornu's participation in the nominated program, the Tribunal noted his prior experience in logistics and his employment with the Company since 2015, including his promotion to a managerial role. While acknowledging that Mr. Nkornu faced challenges with customer relations due to his previous experience, the Tribunal accepted that he required further training. The Tribunal was satisfied that the proposed training, though potentially shorter than initially planned due to Mr. Nkornu's accumulated experience, constituted a genuine training opportunity. The Tribunal also found that Mr. Nkornu had functional English and that the training program would not adversely affect Australian employment opportunities.

Consequently, the Tribunal set aside the delegate's decision not to approve the nomination and substituted a decision approving the nomination.