Food Art Dining Pty Ltd (Migration)

This matter concerned an application for approval of a nomination for a position, brought by Food Art Dining Pty Ltd. The dispute arose when the delegate refused to approve the nomination, a decision that was subsequently affirmed by the Tribunal. The case was heard by the Tribunal, with Member Danielle Galvin presiding.

The primary legal issue before the Tribunal was whether the applicant met the criteria for approval of the nomination, specifically concerning the genuineness of the nominated position. While the delegate had initially found a failure to meet labour market testing requirements, the Tribunal noted that this requirement was disapplied due to the Korea-Australia Free Trade Agreement (KAFTA). Therefore, the focus shifted to regulation 2.72(10) of the Migration Regulations 1994, which mandates that the nominated position must be genuine and, generally, full-time.

The Tribunal reasoned that while the nominated occupation of chef and its associated tasks were consistent with ANZSCO definitions, and the position was stated to be full-time, the applicant had failed to provide sufficient evidence to establish the genuineness of the role. Despite being invited to provide updated information, the applicant did not submit evidence such as an organisational chart demonstrating the business's need for a chef, nor financial information to support the ability to meet the salary for a full-time 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 to determine its genuineness.

Ultimately, the Tribunal was not satisfied that the applicant had met the criteria under regulation 2.72(10) because the genuineness of the position could not be established. Consequently, the Tribunal affirmed the delegate's decision not to approve the nomination.