Nantu Pty Ltd (Migration)

The Administrative Appeals Tribunal (Cth) considered an appeal by Nantu Pty Ltd concerning the refusal of a nomination for a Subclass 457 visa. The core of the dispute revolved around whether the nominated position was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994. The Tribunal was tasked with determining if Nantu Pty Ltd met the criteria for approval of the nomination, specifically whether the nominated position genuinely existed and was associated with an actively operating business.

The Tribunal was required to assess if the nominated position was genuine, a criterion stipulated by regulation 2.72(10)(f). This involved a qualitative assessment of the position against the nominated occupation, as guided by the principles in *Cargo First Pty Ltd v MIBP* [2016] FCA 30. The Tribunal also considered whether the applicant had been afforded a fair opportunity to respond to adverse information, specifically a report from the Australian Border Force (ABF) following a sponsorship monitoring site visit.

The Tribunal found that the ABF report indicated Nantu Pty Ltd's business was no longer actively operating. This finding was communicated to the applicant under section 359A of the Migration Act 1958, but no response was received. In the absence of evidence demonstrating the business was actively and lawfully operating, the Tribunal concluded that the business was no longer trading and, consequently, the nominated position did not exist. As a non-existent position cannot be genuine, the requirements of regulation 2.72(10)(f) were not met.

The Tribunal affirmed the decision to refuse the nomination, finding that Nantu Pty Ltd had not satisfied the applicable criteria for its approval.