M.J. Harris Painting Pty Ltd (Migration)

This matter concerned an application by M.J. Harris Painting Pty Ltd for approval of a nomination for a Painting Trades Worker position for Mr Mariusz NOWAKOWSKI. The delegate had refused the nomination, expressing concerns about the applicant's financial capacity to support the nominated position and whether the business was operating at a level consistent with the creation of a full-time role. The applicant sought review of this decision in the Tribunal, submitting that the delegate's decision was based on erroneous financial and staffing figures provided by a former employee.

The primary legal issue before the Tribunal was whether the applicant met the criteria for approval of the nomination, specifically under regulation 2.72(10)(f) of the Migration Regulations 1994, which requires that the nominated position be genuine. The Tribunal was required to assess the evidence presented by the applicant, including financial statements for the 2017/2018 and 2018/2019 financial years, in light of the delegate's concerns and the legal standard for a genuine position.

The Tribunal considered the case of *Cargo First Pty Ltd v MIBP* [2016] FCA 30, which affirmed the approach of qualitatively assessing a nominated position against the relevant occupation to determine its genuineness. While the applicant provided updated financial information and explanations to counter the delegate's initial concerns, the Tribunal noted that this information was over two years old. Crucially, the Tribunal found that there was no current and up-to-date evidence available regarding the applicant's financial position, which prevented it from determining whether the nominated position was genuine.

Consequently, the Tribunal affirmed the delegate's decision to refuse the nomination. The Tribunal was not satisfied that the applicant had met the applicable criteria for the nomination to be approved due to the lack of current financial evidence to establish the genuineness of the position.