Motion Osteopathy (Migration)

The Administrative Appeals Tribunal considered a decision to refuse a company's nomination for a position under the Medium-term stream of the Temporary Skill Shortage (TSS) visa program. The applicant company sought to nominate Ms. Lombard for the occupation of Osteopath.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of the Migration Regulations 1994, specifically whether the position was genuine and full-time, as stipulated by regulation 2.72(10). While the delegate's refusal was based on insufficient evidence of labour market testing, the Tribunal examined the broader criteria for nomination approval.

The Tribunal reasoned that regulation 2.72(10)(a) requires the nominated position to be genuine, a standard that involves a qualitative assessment of the position against the nominated occupation, as affirmed in *Cargo First Pty Ltd v MIBP* [2016] FCA 30. Furthermore, regulation 2.72(10)(b) mandates that the position be full-time, unless it is reasonable to disregard this requirement. Despite being requested to provide evidence of the company's active business operations and its need for an osteopath, the applicant failed to submit financial reports, tax returns, or evidence of its organisational structure. Consequently, the Tribunal was not satisfied that the position was genuine or that it required Ms. Lombard to work full-time as an osteopath.

As the requirements of regulation 2.72(10) were not met, the Tribunal found it unnecessary to consider other criteria for nomination approval. Accordingly, the Tribunal affirmed the decision not to approve the company's nomination.