KANU, JULIANA MOMOA INTERIOR HOME SERVICES (Migration)

This matter concerned a review of a decision not to approve an employer's nomination for a Customer Service Manager position. The applicant, Juliana Momoa Interior Home Services, sought to nominate an individual for this role. The central dispute revolved around whether the nominated position was genuine, as required by migration regulations.

The Tribunal was tasked with determining if the nominated position associated with the Customer Service Manager occupation met the criteria for approval, specifically whether it was a genuine position as stipulated by regulation 2.72(10)(f) of the Migration Regulations 1994. This regulation requires that the nominated position be real and what it purports to be, ensuring that the subclass 457 program is used to address skill shortages rather than to facilitate visas for individuals in positions that are not genuinely needed or are misrepresented.

The Tribunal considered the definition of "genuine" from the Macquarie Dictionary, meaning "being truly such; real; authentic; properly so called; sincere; free from pretence or affectation." It noted that while policy guidelines, such as those in PAM3, could offer guidance, they were not binding. The Tribunal's assessment focused on whether the nominated position genuinely existed and accurately reflected the occupation nominated. In this instance, the Tribunal found that the applicant, a cleaning business, nominated a Customer Service Manager, a role typically requiring a higher qualification level and different business functions than those of a cleaning service. The lack of evidence of business needs, annual turnover, or staffing levels commensurate with such a nomination, coupled with no record of wage payments for the nominated role, led the Tribunal to conclude that the position was not genuine.

Consequently, the Tribunal affirmed the decision not to approve the nomination, finding that the applicant had not satisfied the applicable criteria for the nomination to be approved.