BK's Franchising Australia Pty Ltd ATF The Trustee for BK's Franchising Australi (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of BK's Franchising Australia Pty Ltd ATF The Trustee for BK's Franchising Australia Unit Trust (the applicant) and the Department of Home Affairs' decision to refuse a nomination. The applicant sought review of this refusal.

The primary legal issue before the Tribunal was whether the nominated position was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994. This involved a qualitative assessment of the nominated role in comparison to the size and structure of the business, and an examination of the financial and organisational information provided. The Tribunal also considered inconsistencies in the applicant's stated legal identity and the clarity of the business structure.

The Tribunal affirmed the decision to refuse the nomination, finding that the nominated position of Finance Manager did not appear genuine in the context of the business's size. This conclusion was based on inconsistencies in the financial materials provided and the inability of the applicant's representative to clearly articulate the complex business structure involving multiple related entities. The Tribunal applied the principle that a nominated position must be genuine, referencing *Cargo First Pty Ltd v MIBP* [2016] FCA 30, which permits a qualitative assessment of the role against the business's circumstances.

The Tribunal affirmed the decision under review to refuse the nomination.