1504566 (Migration)

This matter concerned an application to the Administrative Appeals Tribunal (the Tribunal) by a KFC franchise operator seeking approval of a nomination for a Subclass 457 visa. The applicant sought to nominate Jimmy Pandya for the occupation of Customer Service Manager (ANZSCO Code 149212), stating a base rate of pay of $60,000 and guaranteed annual earnings of $65,700. The applicant asserted that the nominated position was genuine, filled an existing and continuing need within their business operations, and that they had been unable to find an Australian to fill the role.

The Tribunal was required to determine whether the applicant had satisfied the criteria for the approval of the nomination under regulation 2.72 of the Migration Regulations 1994. Specifically, the Tribunal considered whether the nominated occupation corresponded to an occupation specified by the Minister in an instrument in writing, whether the position was genuine, and whether the terms and conditions of employment, including the base rate of pay, were no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work. The Tribunal also considered the applicant's certification regarding the tasks of the position and the qualifications and experience of the nominee.

The Tribunal affirmed the decision to refuse the nomination. It found that the applicant had not provided sufficient evidence to satisfy the criteria under regulation 2.72. While the applicant provided a position description and stated the nominee's salary, the Tribunal was not satisfied that the nominated occupation and its corresponding ANZSCO code were specified in a relevant ministerial instrument, nor that the position was demonstrably genuine in accordance with the regulations. The Tribunal also noted the absence of an organisation chart from the Department's file, which had been referred to by both parties.

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