Lofty Motors Pty Ltd (Migration)

This matter concerned an appeal by Lofty Motors Pty Ltd against a decision to refuse the nomination of a position for a visa under the Medium-term stream. The core of the dispute revolved around whether the nominated position was genuine and whether sufficient evidence had been provided to satisfy the requirements of the Migration Regulations 1994. The decision was made by Senior Member R. Skaros of the Tribunal.

The legal issues before the Tribunal were whether the applicant met the criteria for approval of the nomination, specifically focusing on whether the position associated with the nominated occupation was genuine, as required by regulation 2.72(10)(a). The Tribunal also considered the adequacy of the evidence provided to demonstrate the genuineness of the position, particularly given the passage of time since the initial application and the apparent external administration of the applicant company.

The Tribunal affirmed the delegate's decision to refuse the nomination. The reasoning centred on the lack of current evidence demonstrating a genuine vacancy for a Diesel Motor Mechanic within the applicant's business. While acknowledging that the regulations do not preclude the nomination of a related party or require proof of economic benefit to Australia, the Tribunal noted that over three and a half years had passed since the initial evidence was provided. The applicant appeared to be under external administration, and it was unclear whether the business was still operating or being wound down, thus casting doubt on the existence of a genuine, ongoing vacancy. The Tribunal applied the principle from *Cargo First Pty Ltd v MIBP* [2016] FCA 30, which allows for a qualitative assessment of the nominated position to determine its genuineness.

Consequently, the Tribunal was not satisfied that the applicant met the applicable criteria for the nomination to be approved and therefore affirmed the decision under review.