HUSKY INTERNATIONAL GROUP PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) considered a case involving HUSKY INTERNATIONAL GROUP PTY LTD, the applicant, and the Department of Home Affairs, concerning a nomination for a visa. The dispute arose when the Department refused to approve the nomination, a decision HUSKY INTERNATIONAL GROUP PTY LTD sought to have reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the nominated position associated with the occupation was genuine, as required by regulation 2.72(10)(a) of the Migration Regulations 1994. This involved assessing whether the position truly existed and accurately reflected what it purported to be, considering the tasks and duties of the nominated occupation and the nominee's experience. The Tribunal also had to consider the applicant's compliance with information requests and the provision of contemporary evidence regarding its business activities.

The Tribunal reasoned that the applicant had failed to provide requested information within the prescribed period and had not produced sufficient contemporary evidence of its business activity. The most recent business activity statements were for the quarter ending March 2019, and the latest financial statement was for the 2019 financial year. The Tribunal applied the principle that a nominated position must be genuine, meaning it must exist and be what it purports to be, drawing on the reasoning in *Cargo First Pty Ltd v MIBP* [2016] FCA 30. The Tribunal considered the Department's policy, which suggests that the genuineness of a position may be questioned if it is inconsistent with the nature of the business, and that the size and turnover of the business should support the nominated position.

Ultimately, the Tribunal affirmed the decision under review to refuse the nomination. This outcome was based on the finding that the applicant had not satisfied the Tribunal that the position associated with the nominated occupation was genuine at the time of the decision, due to a lack of contemporary evidence regarding the extent of the business's activity.