CREATE (WANDONG) PTY LTD. (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the refusal of a nomination for a skilled migration visa. The applicant, CREATE (WANDONG) PTY LTD, sought approval for a nominated position as a Hairdresser. The delegate had refused the nomination, and the Tribunal was required to review this decision.

The primary legal issue before the Tribunal was whether the nominated position met the criteria for approval under the Migration Regulations 1994. Specifically, the Tribunal had to determine if the position was genuine, as required by regulation 2.72(10)(a), and if the applicant had provided sufficient information to satisfy the Tribunal of this fact at the time of its decision. The Tribunal also considered whether the position was full-time, as per regulation 2.72(10)(b), although this was secondary to the genuineness assessment.

The Tribunal affirmed the delegate's decision to refuse the nomination. The Tribunal noted that it had invited the applicant to provide updated and current information regarding the nominated position, the business operations, and the applicant's financial circumstances. Crucially, the applicant failed to respond to this invitation. In the absence of this information, and referencing the approach taken in *Cargo First Pty Ltd v MIBP* [2016] FCA 30 regarding the qualitative assessment of a nominated position, the Tribunal was unable to be satisfied that the Hairdresser position was genuine. The delegate's concerns about the business's ability to financially support the position and its operational level consistent with the nominated role were therefore not allayed.

Consequently, the Tribunal concluded that the requirements of regulation 2.72(10)(a) were not met, and therefore the application did not satisfy the criteria for approval of the nomination. The decision under review was affirmed.