Berstermann (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for the position of Retail Manager. The applicant's employer, Mr Sven Noack, had applied for approval of the nomination, which was initially refused by the Department. The employer then applied to the Administrative Appeals Tribunal (AAT) for a review of this decision.

The primary legal issue before the AAT was whether the applicant met criterion cl.187.233 of the Migration Regulations 1994. This criterion requires, among other things, that the nominated position is located in regional Australia, that the nominator is the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information known to the Department about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The AAT, constituted by De-Anne Kelly, found that the evidence established that Mr Noack, the owner and partner of the nominating entity, was the prospective employer and had made the nomination. The AAT noted that the Department's decision to refuse the nomination had been set aside by the Tribunal, and a decision to approve the nomination had been substituted. It was also found that the nomination had not been withdrawn, there was no adverse information concerning Mr Noack, the position remained available as evidenced by a recent employment contract, and the visa application was lodged within the six-month timeframe after the nomination's approval.

Consequently, the AAT determined that the applicant met criterion cl.187.233. The Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria.