KD Trading Australia Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by KD Trading Australia Pty Ltd for approval of a nomination for a position under the medium-term stream. The dispute concerned whether the nominated position of Accountant (General) for Ms Tsz Ching Wong was genuine and full-time, as required by the Migration Regulations 1994. The AAT, presided over by Member Katie Malyon, was tasked with reviewing the delegate's decision to refuse the nomination.

The primary legal issue before the Tribunal was whether KD Trading Australia Pty Ltd met the criteria for approval of the nomination, specifically concerning the genuineness and full-time nature of the nominated position. Regulation 2.72(10) of the Migration Regulations 1994 requires that the position associated with the nominated occupation be genuine and full-time. The Tribunal also had regard to the principles established in cases such as *Cargo First Pty Ltd v MIBP* [2016] FCA 30, which affirmed the need for a qualitative assessment of the position against the nominated occupation.

The Tribunal's reasoning focused on the lack of evidence provided by KD Trading Australia Pty Ltd to demonstrate that the nominated position was genuine and full-time. Despite a request for updated evidence of the business operating and requiring the nominee's services, no such information was supplied. Instead, the applicant's representative advised that the nominated role was no longer available to Ms Wong. Consequently, the Tribunal was unable to be satisfied that the position was genuine and full-time, thus failing to meet the requirements of regulation 2.72(10).

As a result of this finding, the Tribunal affirmed the delegate's decision not to approve the nomination. It was not necessary for the Tribunal to consider the remaining criteria for nomination approval.