Architecture Design Studio (NSW) Pty Ltd (Migration)

This matter concerned an appeal by Architecture Design Studio (NSW) Pty Ltd against a decision to refuse the approval of a nomination for a Construction Project Manager position under the medium-term stream of the Temporary Skill Shortage visa program. The Administrative Appeals Tribunal (AAT) was required to determine whether the nominated position met the criteria for approval.

The primary legal issue before the Tribunal was whether the nominated position for a Construction Project Manager was "genuine" as required by regulation 2.72(10)(a) of the Migration Regulations 1994. This regulation mandates that the position associated with the nominated occupation must be genuine and that the Tribunal must qualitatively assess the position and compare it with the nominated occupation to ascertain its authenticity. The Tribunal also considered the requirement for the position to be full-time under regulation 2.72(10)(b), although this was not the central point of contention.

The Tribunal reasoned that the genuineness of a nominated position involves a qualitative assessment of the role and a comparison with the nominated occupation, as affirmed in *Cargo First Pty Ltd v MIBP* [2016] FCA 30. In this instance, the delegate had formed the view that the primary purpose of the nomination was to facilitate a visa for the nominee, who was related to the director of the business, rather than to fill a genuine vacancy or skill shortage. This assessment led to the conclusion that the position was not genuine, and therefore, the applicant did not satisfy regulation 2.72(10)(a).

Consequently, the Tribunal affirmed the decision not to approve the nomination, finding that the applicant had not met the applicable criteria.