EduTravel Group (Migration)

The Administrative Appeals Tribunal (Cth) considered an application by EduTravel Group (Migration) concerning the approval of a nomination for a position under the medium-term stream. The dispute centred on whether the nominated position of an industrial engineer was genuine and whether the applicant had met the labour market testing requirements. The nominee was the brother-in-law of the managing director, and the position was initially filled without an open recruitment process, with the employment contract being signed while advertising for the role was still underway.

The Tribunal was required to determine if the nominated position was genuine and full-time, as stipulated by regulation 2.72(10) of the Migration Regulations 1994. Furthermore, the Tribunal had to assess whether the applicant had satisfied the labour market testing requirements under section 140GBA of the Migration Act 1958. This involved examining the recruitment process undertaken by the applicant to ensure it was genuine and complied with the legislative framework.

The Tribunal found that while the nominee was employed by the applicant and the company conducted legitimate business activities, the labour market testing requirements were not met. The Tribunal noted that the employment contract for the nominated position was executed on 24 February 2019, with advertising for the role occurring between 12 February and 14 March 2019. Crucially, the Tribunal concluded that the applicant had already decided to engage the nominee before the advertising period concluded, indicating a lack of genuine compliance with the testing requirements. The Tribunal applied the principles from *Cargo First Pty Ltd v MIBP* [2016] FCA 30 regarding the qualitative assessment of a nominated position's genuineness.

Consequently, the Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not met the applicable criteria for approval.