Q&K Family Trust trading as Penny Kha & Associates Pty Ltd (Migration)

This matter concerned an appeal by Q&K Family Trust trading as Penny Kha & Associates Pty Ltd (the applicant) against a decision to refuse the approval of a nomination for a position as a Computer Network and Systems Engineer. The applicant sought to have the nomination approved under the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the approval of the nomination, specifically concerning the genuineness of the nominated position and the provision of sufficient evidence to support the nominee's role and remuneration. Regulation 2.72(10)(f) requires that the nominated position be genuine, a matter which the Tribunal must assess qualitatively by comparing the position with the nominated occupation.

The Tribunal found that the applicant failed to provide adequate evidence to demonstrate the genuineness of the nominated position and the nominee's performance within it. Despite the nominee reportedly working part-time since 2015, the applicant did not provide requested PAYG summaries or tax returns. The payslips submitted were self-generated and lacked independent verification. While ATO pre-filling reports were provided, they were dated shortly before the hearing and considered draft documents. Although superannuation contributions were evidenced, there was a lack of demonstrable evidence of the nominee performing tasks consistent with a Computer Network and Systems Engineer, such as managing systems for tax lodgement, system updates, or security compliance. Furthermore, the provided purchase orders for cartridges and charts of unidentified services did not substantiate the claimed duties.

Consequently, the Tribunal affirmed the original decision to refuse the nomination, finding that the applicant had not met the applicable criteria for its approval.