HENLEY CONSTRUCTIONS PTY LTD (Migration)

This matter concerned a review by the Tribunal of a decision not to approve an employer's nomination for a Subclass 457 visa. The applicant, Henley Constructions Pty Ltd, had nominated an occupation as a Building Associate (ANZSCO 312112) for a prospective employee. The core dispute revolved around whether the nominated position was genuine and consistent with the applicant's business operations, which involved the construction of large-scale buildings.

The legal issues before the Tribunal were whether the applicant met the criteria for the approval of the nomination under the Migration Regulations 1994, specifically focusing on Regulation 2.72(10)(f), which requires the nominated position to be genuine. This involved assessing whether the proposed duties of the nominee aligned with the description of a Building Associate as outlined in the ANZSCO guide and whether the applicant's business structure and growth supported the creation of such a role.

The Tribunal reasoned that the applicant had provided sufficient evidence, including financial statements, business plans, project forecasts, and details of current projects, to demonstrate the genuine nature of the Building Associate position. It considered the ANZSCO description of a Building Associate, which includes supervising construction works and coordinating resources, and found that the applicant's business, engaged in large-scale construction, required such a role to manage its growth and operations. The Tribunal applied the principle that a qualitative assessment of the position is required, comparing the nominated occupation with the actual role to be performed, as established in cases like *Cargo First Pty Ltd v MIBP* [2016] FCA 30.

Ultimately, the Tribunal set aside the decision not to approve the nomination and substituted a decision that the nomination be approved, finding that the applicant had met all applicable criteria.