1601323 (Migration)

This matter concerned an application by a business owner to have a nomination for a Subclass 457 visa approved. The applicant sought to nominate Mrs Hafizah Binti Hassan to work as a chef at their restaurant, Asian Essence. The delegate of the Minister refused the nomination, finding that the nominated position was not genuine due to insufficient evidence of the restaurant's scale of operations and turnover, and concerns about current staffing arrangements. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the approval of the nomination, specifically whether the nominated position was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994. The Tribunal was required to consider the evidence presented by the applicant, including documents relating to the restaurant, its business plan, financial records, and recruitment efforts, in light of the delegate's concerns.

The Tribunal affirmed the delegate's decision to refuse the nomination. The Tribunal found that the applicant had not provided sufficient independently verifiable evidence to demonstrate the scale of business activity and turnover of the restaurant. While additional documents were provided to the Tribunal, they did not adequately address the delegate's concerns regarding the genuineness of the position. Consequently, the Tribunal was not satisfied that the applicant met the applicable criteria for the nomination to be approved.