W&Y Property Management Pty Ltd ATF W&Y Family Trust (Migration)

The Administrative Appeals Tribunal considered a decision by the Department of Home Affairs not to approve a nomination made by W&Y Property Management Pty Ltd ATF W&Y Family Trust. The applicant sought to nominate an individual for the occupation of Property Manager (ANZSCO Code 612112) as part of a visa application process. The core of the dispute revolved around whether the nominated occupation met the relevant legislative criteria for approval.

The Tribunal was required to determine two primary legal issues. Firstly, whether the nominated occupation and its corresponding code, Property Manager (ANZSCO Code 612112), corresponded to an occupation and code specified in instrument IMMI 17/060, as required by subclause 2.72(10)(aa) of the Migration Regulations 1994. Secondly, the Tribunal had to assess whether the position associated with the nominated occupation was genuine, pursuant to regulation 2.72(10)(f).

In its reasoning, the Tribunal found that the nominated occupation of Property Manager (ANZSCO Code 612112) was not specified in instrument IMMI 17/060, and therefore, the requirement of subclause 2.72(10)(aa) was not met. The Tribunal noted that the applicant had been given an opportunity to comment on this issue by the Department but failed to do so, and also did not provide contemporary evidence when invited by the Tribunal. Regarding the genuineness of the position, the Tribunal applied the principle from *Cargo First Pty Ltd v MIBP* [2016] FCA 30, which allows for a qualitative assessment of the position. Concerns were raised due to the limited evidence provided about the tasks of the role, the lack of response to the invitation for further evidence, and the fact that the nominee's wife, a director of the applicant company, authorised his employment, and both the nominee and his wife shared the same residential address. The Tribunal concluded that these factors cast doubt on the genuineness of the nominated position.

Consequently, the Tribunal affirmed the decision under review not to approve the nomination.