KRYSTAL KLEAR SERVICES PTY LTD (Migration)

This matter concerned an application for review of a delegate's decision to refuse to approve Krystal Klear Services Pty Ltd's nomination of Mr Hemalkumar Shah for a subclass 457 visa. The refusal was based on the delegate's finding that the nominated position of contract administrator was not genuine, failing to meet the requirements of regulation 2.72(10)(f) of the Migration Regulations 1994. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the nominated position of contract administrator was genuine, as required by regulation 2.72(10)(f). This required a qualitative assessment of the position and a comparison of its duties with the standard tasks of a contract administrator as defined by the Australian and New Zealand Standard Classification of Occupations (ANZSCO). The Tribunal also considered whether the applicant met the other criteria for nomination approval under section 140GB of the Migration Act 1958 and regulation 2.72.

The Tribunal applied the principle established in *Cargo First Pty Ltd v MIBP* [2016] FCA 30, which permits a qualitative assessment of a nominated position against the relevant ANZSCO description to determine its genuineness. The Tribunal found that the tasks associated with the nominated position were simplistic and not commensurate with the higher-level responsibilities typically undertaken by a contract administrator, as outlined in the ANZSCO. Consequently, the Tribunal was not satisfied that the position was genuine.

The Tribunal affirmed the delegate's decision to refuse to approve the nomination.