Australian Home Care Services Pty Ltd (Migration)

The Administrative Appeals Tribunal, constituted by Member Antonio Dronjic, considered an application by Australian Home Care Services Pty Ltd concerning the approval of a nomination for a visa. The core of the dispute was whether the nominated position met the legislative requirements for approval, specifically concerning its genuineness and full-time nature. The Tribunal was tasked with reviewing the decision to refuse the nomination.

The legal issues before the Tribunal were whether the nominated position was genuine, as required by regulation 2.72(10)(a) of the Migration Regulations 1994, and whether it constituted a full-time position, as mandated by regulation 2.72(10)(b), or if it was reasonable to disregard this latter requirement. The Tribunal also had to consider whether the applicant had provided sufficient contemporary evidence to satisfy these criteria, particularly in light of their failure to respond to an invitation for further information.

The Tribunal's reasoning focused on the lack of contemporary evidence provided by the applicant. It noted that, in the absence of such evidence, it could not be satisfied that the nominee's position was consistent with the applicant's business activities or that the position was created for a purpose other than to secure a migration outcome. Consequently, the Tribunal found that the requirement for a genuine position was not met. Furthermore, due to the absence of current information, the Tribunal could not be satisfied that the position was full-time or that it was reasonable to disregard this requirement. Applying the principles from cases such as *Cargo First Pty Ltd v MIBP* [2016] FCA 30, which endorse a qualitative assessment of the position, the Tribunal concluded that the applicant had failed to meet the essential criteria for the nomination's approval.

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.