LC NINOS PTY LTD ATF LC CHILDREN FAMILY TRUST (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a decision to refuse the nomination of a position by LC Ninos Pty Ltd ATF LC Children Family Trust (the applicant). The applicant sought to nominate a position for a Foreign Exchange Dealer.

The primary legal issue before the Tribunal was whether the nominated position was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994. This involved a qualitative assessment of the position against the nominated occupation to ensure it was a genuine need for a skilled occupation by the employer, rather than a contrived migration outcome.

The Tribunal reasoned that the applicant, represented by Mr Carlos Enrique Restrepo Penilla, who was also listed as the owner of the business and the holder of the nominated position, was essentially sponsoring himself. While not automatically fatal, this required careful scrutiny. The financial information provided for the 2014/2015 and 2015/2016 financial years did not demonstrate wages being paid to the nominees, and the profits were insufficient to cover the contracted wage for the nominated occupation. Consequently, the Tribunal was not satisfied that the position was genuine, and therefore the requirements of regulation 2.72(10)(f) were not met.

The Tribunal affirmed the decision not to approve the nomination.