BEDI (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, specifically under the Subclass 187 Regional Sponsored Migration Scheme, Direct Entry stream. The applicant was nominated for the position of Service Manager by JBM Auto Wreckers Pty Ltd. The core dispute revolved around the approval of this nomination, which had initially been refused by the Department. The Administrative Appeals Tribunal (AAT) considered the case and, finding it unnecessary to hold a hearing, made its decision based on the material before it.

The primary legal issue before the Tribunal was whether the nomination of the position met the requirements of clause 187.233 of the Migration Regulations 1994. This clause outlines several conditions, including that the position must be located in regional Australia, the applicant must be identified in the nomination if made after 1 July 2017, the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonable to disregard), the position must remain available to the applicant, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal reasoned that the crucial element was the approval of the nomination. Following the Department's refusal, JBM Auto Wreckers Pty Ltd sought review. On 20 December 2022, the Tribunal set aside the Department's decision and substituted a decision approving the nomination. As this essential criterion, clause 187.233(3), was now satisfied, the Tribunal concluded that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining eligibility criteria.