CL & SN Mcfarlane Pty Ltd ATF CL & SN Mcfarlane Family Trust (Migration)

This matter concerned an application by CL & SN Mcfarlane Pty Ltd ATF CL & SN Mcfarlane Family Trust for the approval of a nomination for a position as a Café or Restaurant Manager. The nominated occupation was subject to an inapplicability condition, and the nominee did not hold or have an application for a Subclass 457 visa pending, particularly in light of the closure of the 457 visa program. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the criteria for the approval of the nomination.

The Tribunal considered two primary legal issues. Firstly, whether the applicant had satisfied regulation 2.72(5) of the Migration Regulations 1994, which requires the identification of a visa holder or proposed applicant who will work in the nominated occupation. Secondly, the Tribunal examined whether the nominated position was genuine, as required by regulation 2.72(10)(f), applying the qualitative assessment approach approved in *Cargo First Pty Ltd v MIBP* [2016] FCA 30.

In its reasoning, the Tribunal found that regulation 2.72(5) was not met because the nominee did not have an undetermined Subclass 457 visa application, and therefore, it was not satisfied that the nominee would work in the nominated occupation. Regarding the genuineness of the position, the Tribunal noted a lack of contemporary evidence to support the claim that the position was genuine. Furthermore, the applicant's failure to respond to a section 359A invitation indicated a lack of commercial activities requiring such a position. Consequently, the Tribunal was not satisfied that the position was genuine, and thus regulation 2.72(10)(f) was not met.

The Tribunal affirmed the decision not to approve the nomination, concluding that the applicant had not met the applicable criteria for the nomination to be approved.