KUMAR, RANDEEP (Migration)

This matter concerned an application for approval of a nomination for a Subclass 457 visa, where the applicant sought to nominate a position of Cook. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under s.140GB(2) and s.140GBA of the Act, and specifically Regulation 2.72 of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant had identified a visa holder or proposed visa applicant who would work in the nominated occupation, and whether the nominated position of Cook was genuine. The Tribunal considered Regulation 2.72(5), which requires the identification of the visa holder or applicant who will work in the nominated occupation, and Regulation 2.72(10)(f), which mandates that the nominated position must be genuine.

The Tribunal found that Regulation 2.72(5) was not met because the nominee did not have an undetermined Subclass 457 visa application. Furthermore, the Tribunal was not satisfied that the nominated position of Cook was genuine, noting a lack of contemporary evidence to support this and the applicant's failure to respond to a s.359A invitation. The Tribunal applied the principles from *Cargo First Pty Ltd v MIBP* [2016] FCA 30 regarding the qualitative assessment of a nominated position's genuineness.

The Tribunal affirmed the decision not to approve the nomination, concluding that the applicant had not satisfied the applicable criteria for approval.