AUSTONE INTERNATIONAL TRADING PTY LTD (Migration)

This matter concerned an appeal by AUSTONE INTERNATIONAL TRADING PTY LTD against a decision not to approve a nominated position for a Subclass 457 visa. The core of the dispute revolved around whether the nominated position, that of Managing Director, was genuine and whether the applicant met the relevant criteria under the Migration Regulations 1994. The decision was made by Alan McMurran, a Member of the Tribunal.

The legal issues before the Tribunal were whether the nominated position was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994, and whether AUSTONE INTERNATIONAL TRADING PTY LTD had satisfied all other applicable criteria for the approval of the nomination. The Tribunal was required to assess the nominated occupation against the actual tasks and duties, the scope and size of the business, and consider whether the position was excluded based on factors such as annual turnover and employee numbers.

The Tribunal's reasoning focused on the genuineness of the nominated position. Drawing on the principles established in cases like *Cargo First Pty Ltd v MIBP* [2016] FCA 30, the Tribunal considered that a genuine position requires an objective assessment of whether the nominated occupation truly is what it purports to be. In this instance, the Tribunal found that the nominated Managing Director role did not currently exist within the business, the nominee had not previously worked in the business, and the scale of the business did not support such a position. The Tribunal noted that the director of the company indicated he had income from overseas businesses and did not wish to make further comment when asked about his survival in Australia for the past two years.

Consequently, the Tribunal affirmed the decision not to approve the nomination, finding that the applicant had failed to satisfy the criterion that the nominated position be genuine.