Holy Egg Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Holy Egg Pty Ltd for the approval of a nomination for a Café or Restaurant Manager position under the Short-term stream of the Subclass 482 visa. The core of the dispute concerned whether the nominated position was genuine and full-time, as required by migration regulations. The applicant had initially provided some evidence suggesting the position was genuine and had been occupied by the nominee, who was also a director of the company, since the business's establishment in 2018.

The legal issue before the Tribunal was whether the applicant had satisfied the criteria for the approval of the nomination, specifically under regulation 2.72(10)(a) and (b) of the Migration Regulations 1994, which require the nominated position to be genuine and full-time. The Tribunal was required to assess the evidence presented by the applicant and determine if these criteria were met, considering the applicant's obligation to provide updated information to demonstrate the current status of the position.

The Tribunal reasoned that while some initial evidence was provided, it was lodged over three and a half years prior to the review. Despite requests for updated and current information to demonstrate the genuineness and full-time nature of the position as at mid-2023, no such information was forthcoming from the applicant. In the absence of this crucial contemporary evidence, and acknowledging the potential impact of the COVID-19 pandemic on the hospitality industry, the Tribunal was not satisfied that the position was genuine or full-time. The Tribunal applied the principles from *Cargo First Pty Ltd v MIBP* [2016] FCA 30, which supports a qualitative assessment of the nominated position's genuineness.

Consequently, the Tribunal affirmed the decision to refuse the nomination. The Tribunal concluded that the applicant had not met the requirements of regulation 2.72(10)(a) or (b), and therefore did not satisfy the applicable criteria for the nomination to be approved.