Semmrak Pty Ltd (Migration)

This matter concerned an appeal by Semmrak Pty Ltd against a decision to refuse the approval of a nominated position for a Chief Executive or Managing Director under the medium-term stream of the Temporary Skill Shortage (TSS) visa program. The applicant sought to have the nominated position approved, which is a prerequisite for the nominee to be granted a visa.

The primary legal issue before the Tribunal was whether the nominated position was genuine and met the requirements of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the applicant, a small business operating from a residential unit and primarily engaged in driving instruction and taxi services, genuinely required a Chief Executive or Managing Director, as defined by the Australian and New Zealand Standard Classification of Occupations (ANZSCO). The Tribunal also considered whether the applicant had provided sufficient evidence to satisfy the delegate of the genuineness of the position, particularly in light of the limited information provided about the current scope of the business.

The Tribunal affirmed the delegate's decision to refuse the nomination. It reasoned that the ANZSCO definition of a Chief Executive or Managing Director involves determining, formulating, and reviewing the general policy, programs, and overall direction of an organisation, typically within a framework established by a board of directors. The Tribunal found that the applicant's business, as described and evidenced, did not appear to be of a size or nature that would genuinely require such a senior executive role. The limited information provided about the business's current operations, coupled with the fact that the business operated from a residential unit and had only one employee (the nominee) and a number of subcontractors, made it difficult to assess the genuineness of the nominated position. The Tribunal applied the principle that a nominated position must be genuine, as considered in cases like *Cargo First Pty Ltd v MIBP* [2016] FCA 30, and concluded that the evidence did not support the assertion that the nominated role was a genuine requirement for the applicant's business.

Consequently, the Tribunal affirmed the decision under review to refuse the approval of the nomination.