CHAR BAR PTY LTD (Migration)

The Administrative Appeals Tribunal considered a decision by the Minister to refuse the nomination of a position by CHAR BAR PTY LTD. The applicant sought approval for a nominated position as a Café or Restaurant Manager. The core of the dispute revolved around whether the nominated position was genuine, a prerequisite for the approval of the nomination under migration regulations.

The legal issue before the Tribunal was whether the nominated position met the criteria for approval, specifically whether it was a genuine position as required by regulation 2.72(10)(f) of the Migration Regulations 1994. This required the Tribunal to determine if the position, as nominated, actually existed and was therefore capable of being genuine.

The Tribunal's reasoning focused on the status of CHAR BAR PTY LTD. Evidence presented, including a Current Company Extract, indicated that the company was listed as 'Externally Administered' and that a resolution to wind up the company had been passed. Furthermore, the applicant's former migration agent indicated the company was no longer in operation. Based on this evidence, the Tribunal concluded that the company was no longer trading and, consequently, the nominated position no longer existed. As a non-existent position cannot be genuine, the Tribunal found that the requirements of regulation 2.72(10)(f) were not met.

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