GEONY PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute between GEONY PTY LTD and the Minister for Immigration, concerning the approval of a nomination for a Temporary Residence Transition stream visa. GEONY PTY LTD had nominated Mr Hakmoon Kim for the occupation of Wall and Floor Tiler. The core of the dispute revolved around whether the nominated position was genuine and whether there was a genuine need for the role within the Australian labour market, particularly in light of a substantial slowdown in the construction industry and a lack of demonstrated skill shortage.

The Tribunal was required to determine if the applicant, GEONY PTY LTD, met the criteria for the approval of the nomination, specifically focusing on Regulation 2.72(10)(f) of the Migration Regulations 1994, which mandates that the nominated position must be genuine. This involved assessing whether the nominated occupation existed to facilitate the nominee's stay in Australia, rather than to fill a genuine business need, and whether the nominator had the financial capacity to employ a full-time worker in that role. The Tribunal also considered the applicant's assertion that it was difficult to find suitably qualified Australian citizens or permanent residents for the position.

In its reasoning, the Tribunal found that the evidence presented did not satisfy the genuineness requirement for the nominated position. It noted that the applicant had initially answered "no" when asked if the Australian labour market had been tested, although this was later complicated by the application of the Korea-Australia Free Trade Agreement which exempted certain nominations from labour market testing. However, the Tribunal was not satisfied that the position itself was genuine, considering the economic conditions in the construction industry and the applicant's financial capacity. The Tribunal concluded that the nominated occupation appeared to exist primarily to facilitate the nominee's stay in Australia, rather than to meet a genuine business requirement.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination approval. The Tribunal was not satisfied that GEONY PTY LTD had met the applicable criteria for the nomination to be approved.