AK Formwork Construction Pty Ltd (Migration)

This matter concerned an application for the approval of a nomination of a position under the medium-term stream, brought by AK Formwork Construction Pty Ltd. The dispute arose when the Tribunal affirmed the decision to refuse the nomination, as the applicant had not provided requested information to demonstrate that the nominated position was genuine. The decision was made by Member Mary Sheargold.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the approval of the nomination, specifically whether the nominated position was genuine as required by regulation 2.72(10)(a) of the Migration Regulations 1994. This required a qualitative assessment of the position and its alignment with the nominated occupation, considering contemporary information about the applicant's business operations and the need for the role.

The Tribunal reasoned that to determine if a position is genuine, it must consider current information regarding the applicant's business structure, turnover, activity levels, employee numbers, and the necessity of the nominated role. In this instance, the applicant failed to provide any contemporary evidence addressing these aspects, despite a request from the Tribunal. Consequently, the Tribunal was unable to be satisfied that the nominated position was genuine, and therefore, the requirements of regulation 2.72(10)(a) were not met. The Tribunal affirmed the decision not to approve the nomination.