AUSTWIDE LASER PTY LTD (Migration)

This matter concerned an appeal by AUSTWIDE LASER PTY LTD (the applicant) against a decision to refuse the nomination of an occupation for a Subclass 457 visa. The dispute centred on whether the nominated position was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994. The decision was made by Antonio Dronjic, a member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the nominated position associated with the applicant's proposed Subclass 457 visa nominee was genuine. This required an assessment not only of whether the position existed but also whether it truly represented what it purported to be, in accordance with the purpose of the migration scheme designed to protect the Australian workforce. The Tribunal also considered the evidentiary weight of departmental policy, noting it was not binding but could guide decision-making.

The Tribunal reasoned that a genuine position requires a qualitative analysis to ensure it aligns with the nominated occupation, preventing the scheme from being undermined by misrepresentation. Evidence revealed that the nominee's sister was the owner and director of the sponsoring business, which had not previously engaged in tutorial services. The business activities were primarily telesales and related services. The Tribunal noted that the business registered a new entity, Megamind Learning Institute, shortly before the nominee's return to Australia, and this institute commenced operations around the same time the nominee began her 'training'. The Tribunal concluded that the position was created to facilitate a migration outcome rather than being a genuine business need.

Consequently, the Tribunal affirmed the decision to refuse the nomination, finding that the requirements of regulation 2.72(10)(f) were not met because the position associated with the nominated occupation was not genuine.