Kayla Technologies Pty Ltd (Migration)

Kayla Technologies Pty Ltd (Migration) concerned a review of a decision to refuse the approval of a nomination for a visa. The applicant, Kayla Technologies Pty Ltd, sought to nominate Ms Massad for the position of Contract Administrator (ANZSCO 511111), with the job title Subcontractor Manager. The dispute centred on whether the nominated position was genuine and whether the applicant had provided sufficient information to satisfy the relevant criteria under the Migration Regulations 1994. The matter was heard by Michelle East, a member of the Tribunal.

The primary legal issue before the Tribunal was whether Kayla Technologies Pty Ltd met the criteria for the approval of its nomination, specifically concerning the genuineness of the nominated position. This required the Tribunal to assess the evidence provided by the applicant against the requirements of regulation 2.72 of the Migration Regulations 1994, which mandates that the position associated with the nominated occupation must be genuine. The Tribunal also considered whether the applicant had provided all necessary information within the prescribed period to enable it to make a determination.

The Tribunal affirmed the decision to refuse the nomination, finding that it was unable to determine whether the position was genuine due to a lack of current and up-to-date evidence. While the applicant provided submissions detailing the importance of subcontractors to its business and increased expenditure on subcontracting services, the Tribunal found this insufficient to satisfy the requirement that the nominated position itself be genuine. The Tribunal applied the principle established in *Cargo First Pty Ltd v MIBP* [2016] FCA 30, which permits a qualitative assessment of the nominated position against the nominated occupation to ascertain its genuineness. In this instance, the provided evidence did not allow for such a satisfactory assessment.