Hasl PTY LTD (Migration)

This matter concerned an application by HASL Pty Ltd for approval of a nomination of a position under the standard business sponsor stream. The core dispute revolved around whether the nominated position was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994. The Tribunal was tasked with reviewing the decision to refuse the nomination.

The primary legal issue before the Tribunal was to determine if HASL Pty Ltd had satisfied the criteria for the approval of its nomination, specifically whether the nominated position was genuine. This required an assessment of the position against the nominated occupation, considering the definition of "genuine" and relevant departmental policy, while also acknowledging that such policy is not binding. The Tribunal also considered whether the applicant had provided sufficient organisational information to demonstrate the roles and responsibilities of employees and whether it had responded to the Tribunal's invitation to provide current information.

The Tribunal reasoned that for a position to be considered genuine under regulation 2.72(10)(f), it must not only exist but also be what it purports to be, aligning with the duties of the nominated occupation. The Tribunal noted that while departmental policy, such as that found in the Procedures Advice Manual 3, provides guidance on assessing the genuineness of a position, it is not determinative and the Tribunal is not bound by it. In this instance, the applicant had not provided adequate organisational information to demonstrate the roles and responsibilities of employees, nor had it responded to the Tribunal's request for current information.

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