H L Group Engineering Pty Ltd (Migration)

This matter concerned an appeal by H L Group Engineering Pty Ltd against a decision not to approve its nomination for an Accountant (General) (ANZSCO 221111) position. The delegate had refused the nomination on the grounds that the nominated position was not genuine, as the majority of the proposed nominee's tasks did not align with the duties of an Accountant (General) and the nominee lacked the appropriate level of responsibility. The Tribunal, however, made its decision on different grounds due to recent legislative reforms.

The primary legal issue before the Tribunal was whether H L Group Engineering Pty Ltd met the criteria for the approval of its nomination, specifically in light of the repeal of the Subclass 457 visa program and the introduction of new regulations. The Tribunal was required to consider whether the nominated position was genuine, as per regulation 2.72(10)(f) of the Migration Regulations 1994, and whether the applicant met the overarching requirements of section 140GB(2) of the Migration Act 1958.

The Tribunal affirmed the delegate's decision to refuse the nomination, albeit on different grounds. While the delegate focused on the genuineness of the position, the Tribunal noted that the Subclass 457 visa program had been repealed and closed to new applications from 18 March 2018. The Tribunal found that the applicant did not hold a Subclass 457 visa and there was no evidence of a current pending application for such a visa. Consequently, as the approval of a nomination is conditional on meeting prescribed criteria, and these criteria were not met in the context of the repealed visa program, the nomination could not be approved. The Tribunal therefore affirmed the decision under review.