Sandhu Construction Group Pty Ltd (Migration)

This matter concerned an appeal by Sandhu Construction Group Pty Ltd (the applicant) against a decision of the Department of Home Affairs to refuse to approve its nomination for a bricklayer position under the medium-term stream. The applicant had provided various documents to the Department, including a labour market testing report, an employment agreement, a market salary survey, a position description, an organisational chart, and financial statements. The delegate refused the application, noting a lack of evidence of increased business activity requiring the nominated occupation.

The primary legal issue before the Tribunal was whether the nominated position associated with the occupation of bricklayer was genuine, as required by regulation 2.72(10)(a) of the Migration Regulations 1994. The Tribunal was required to assess the position qualitatively and compare it with the nominated occupation, drawing on established case law and departmental policy concerning the genuineness of a position. The Tribunal also considered the applicant's submission that most bricklayers were engaged on a contract basis and the absence of evidence demonstrating a need for additional employees in the nominated occupation due to increased business activity.

The Tribunal affirmed the delegate's decision, finding that the applicant had failed to provide sufficient information to satisfy the genuineness requirement for the nominated position. The Tribunal noted that the applicant had not provided any further information to the Tribunal beyond what was initially submitted to the Department, nor had it provided the requested information within the prescribed period. In the absence of current information about the nominee, the program, and the business, the Tribunal was not satisfied that the position was genuine. The Tribunal applied the principles from *Cargo First Pty Ltd v MIBP* [2016] FCA 30 regarding the qualitative assessment of a nominated position and the approach outlined in *Re Drake and Minister for Immigration and Ethnic Affairs (No 2)* [1979] AATA 179 concerning the application of departmental policy.

The Tribunal affirmed the decision under review to refuse the nomination.