WINADELAIDE PTY LTD (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of WINADELAIDE PTY LTD concerning the approval of a nomination for a visa. The dispute centred on whether the applicant met the criteria for the nomination to be approved, specifically the genuineness of the nominated position. The decision was made by Member Jade Murphy.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the requirements for the approval of a nomination under the Migration Regulations 1994, particularly regulation 2.72(10)(f), which mandates that the position associated with the nominated occupation must be genuine. This required the Tribunal to assess whether the nominating business had demonstrated that the position remained a genuine requirement.

The Tribunal's reasoning focused on the lack of contemporary evidence regarding the nominated position. While acknowledging the legal principle that a nominated position must be genuine, as established in cases like *Cargo First Pty Ltd v MIBP* [2016] FCA 30, the Tribunal found that the information available from the Department's file was at least three years old and therefore could not be given weight. Despite being invited to provide updated information under subsection 359(2) of the Act, the applicant failed to respond. Consequently, the Tribunal was not satisfied that the nominating business had demonstrated the genuineness of the position, leading to a failure to meet the requirements of regulation 2.72(10)(f).

As the Tribunal found that regulation 2.72(10)(f) was not met, it was not necessary to consider other criteria under regulation 2.72 or section 140GBA. Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.