F.S. GLENNON & CO PTY LTD (Migration)

The Administrative Appeals Tribunal considered a decision to refuse the nomination of a position for a migration visa. The applicant, F.S. Glennon & Co Pty Ltd, sought to nominate Ms Jessica Rachel Jayne Freeman for the occupation of Sales and Marketing Manager. The Tribunal, presided over by Member Peter Papadopoulos, was tasked with determining whether the nominated position met the relevant criteria for approval under the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominated position was "genuine" and "full-time" as required by regulation 2.72(10) of the Migration Regulations 1994. This involved a qualitative assessment of the position to ascertain if it truly corresponded to the nominated occupation and if the duties described were consistent with the ANZSCO classification. The Tribunal also had to consider whether the applicant had provided sufficient contemporaneous information to satisfy the decision-maker of the genuineness of the position.

The Tribunal's reasoning focused on the requirement for a genuine position, drawing on established case law such as *Cargo First Pty Ltd v MIBP*. This requires not only that a position exists but also that it is what it purports to be, necessitating a qualitative analysis and comparison with the nominated occupation's tasks. In this instance, the Tribunal found a lack of contemporaneous information to support the genuineness of the nominated Sales and Marketing Manager position. The provided Position Description was for an "Architectural Sales Representative," which did not align with the nominated occupation. Consequently, the Tribunal was not satisfied that the applicant had met the applicable criteria for the nomination to be approved.

The Tribunal affirmed the original decision to refuse the nomination.