Bodenstein (Migration)

The Administrative Appeals Tribunal considered an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, concerning a Sales and Marketing Manager position. The applicant sought review of a decision that their nomination was not approved, which consequently meant they did not meet a key criterion for the visa.

The central legal issue before the Tribunal was whether the applicant was the subject of an approved nomination, specifically whether the nominator was actively and lawfully operating a business in Australia. This required the Tribunal to consider the requirements of clause 187.233 of the Migration Regulations 1994, which mandates that the nominated position be located in regional Australia, that the nominator be the prospective employer, that the nomination be approved and not withdrawn, that there be no adverse information known to Immigration, that the position remains available, and that the visa application be made within six months of nomination approval.

The Tribunal noted that the delegate had refused the nomination, finding that the nominator was not actively and lawfully operating a business in Australia. The delegate's reasoning was based on the business's lease and financial arrangements, concluding that it had not commenced active operation as it was registered on 10 July 2019 and the decision date was 19 September 2019, meaning it had not been physically operating for the required period. Consequently, the delegate found the business to be a "physically non-operating new start-up business."

Given these findings, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicants must meet the criteria under clauses 187.233 and 187.223 of Schedule 2 to the Migration Regulations 1994.