Element 13 Pty Limited (Migration)

The Administrative Appeals Tribunal, constituted by Member Terrence Baxter, considered an application by Element 13 Pty Limited for the approval of a nomination for a glazier position under the medium-term stream. The dispute centred on whether the nominated position was genuine and whether the applicant had provided sufficient evidence to satisfy the requirements of the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if the nominated position for a glazier was genuine, as required by regulation 2.72(10)(a) of the Migration Regulations 1994. This involved assessing whether the position truly existed and accurately reflected its purported role, considering the tasks and duties associated with the nominated occupation and the nominee's experience. The Tribunal also had to consider the applicant's response to the Department's invitation to provide current information regarding the business activity and the nominated position's integration within it.

The Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not provided sufficient evidence to demonstrate the genuineness of the nominated position. While the applicant submitted various documents, including job advertisements, an employment contract, and financial reports, the Tribunal noted a lack of contemporary evidence of business activity or how the nominated position specifically fit into the applicant's operations. The Tribunal applied the principle that the genuineness of a position requires a qualitative assessment, comparing the described role with the nominated occupation and the nominee's capabilities, as discussed in *Cargo First Pty Ltd v MIBP* [2016] FCA 30. The applicant's failure to provide a substantive response to the Department's request for current information was a significant factor in this determination.