Pestano Family Trust trading as Ezyflow Civil Pty Ltd (Migration)

The case concerned an application for approval of a nomination for a medium-term stream visa, where the nominated occupation was Bricklayer. The applicant, Pestano Family Trust trading as Ezyflow Civil Pty Ltd, failed to provide current information when invited by the Tribunal. The dispute centred on whether the applicant met the criteria for the approval of the nomination, specifically concerning the genuineness and full-time nature of the nominated position.

The legal issues before the Tribunal were whether the nominated position was genuine, as required by regulation 2.72(10)(a) of the Migration Regulations 1994, and whether it was a full-time position, as required by regulation 2.72(10)(b). The Tribunal also considered whether it was reasonable to disregard the full-time requirement. The assessment of the genuineness of the position involved a qualitative evaluation by comparing the nominated occupation with the applicant's commercial activities, size, and financial standing, drawing on principles from cases such as *Cargo First Pty Ltd v MIBP* [2016] FCA 30.

The Tribunal reasoned that due to the applicant's failure to respond to its invitation for current information, there was a lack of contemporary evidence regarding the applicant's commercial activities. Consequently, the Tribunal was not satisfied that the nominee's position was consistent with the nature and scope of the applicant's business, thus failing the genuineness requirement under regulation 2.72(10)(a). Furthermore, the absence of current evidence meant the Tribunal could not be satisfied that the position was full-time or that it was reasonable to disregard this requirement, failing regulation 2.72(10)(b).

As the Tribunal found that the requirements of regulation 2.72(10) were not met, it was unnecessary to consider other criteria for the nomination. Accordingly, the Tribunal affirmed the decision under review not to approve the nomination.