KENJI GROUP PTY LTD (Migration)

The Administrative Appeals Tribunal, constituted by Member Mary Sheargold, considered a decision to refuse the nomination of a position for a medium-term stream visa. The applicant, Kenji Group Pty Ltd, sought to nominate a Chef position. The Tribunal was required to determine whether the nominated position met the criteria for approval under the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the nominated position associated with the occupation of Chef was genuine, as required by reg 2.72(10)(a) of the Migration Regulations 1994. This involved assessing the substance and reality of the employment opportunity being offered. The Tribunal also considered the requirement under reg 2.72(10)(b) that the position be full-time, unless it is reasonable to disregard this.

The Tribunal reasoned that to determine if a position is genuine, it must be able to qualitatively assess the position and compare it with the nominated occupation, as guided by principles in cases such as *Cargo First Pty Ltd v MIBP* [2016] FCA 30. In this instance, the Tribunal found that there was no contemporary information before it regarding the applicant's business structure, turnover, activity levels, or the number of current employees. Consequently, the Tribunal was unable to be satisfied that the nominated Chef position was genuine, and therefore, the requirements of reg 2.72(10)(a) were not met.

The Tribunal affirmed the decision under review not to approve the nomination.