Luke 545 Pty Ltd (Migration)

This matter concerned an appeal by Luke 545 Pty Ltd against a decision to refuse the approval of a nomination for a Subclass 457 visa. The core of the dispute revolved around whether the nominated position of a full-time chef was genuine and whether the proposed salary was inflated to circumvent English language competency requirements. The decision was made by Antonio Dronjic, a Member of the Tribunal.

The legal issues before the Tribunal were whether the nominated position was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994, and whether the applicant had met all other relevant criteria for the approval of the nomination under section 140GB(2) of the Migration Act 1958. Specifically, the Tribunal had to consider if the business genuinely required a full-time chef, if the nominee was working full-time, and if the business had made reasonable efforts to recruit an alternative full-time chef.

The Tribunal found that the evidence did not support the claim of a genuine need for a full-time chef. Despite the business identifying such a need in early 2016, the nominee had consistently worked part-time, with payslips indicating between four and twelve hours per week. Explanations for this discrepancy varied, and the Tribunal was not satisfied that the business had actively sought to employ an alternative person for the full-time position since late 2016. Furthermore, the Tribunal noted that the proposed salary of $98,000 was significantly higher than the applicant's own market research ($48,000-$78,500) and expressed concern that this inflated salary was intended to avoid the need to provide evidence of the nominee's English language competency.

Consequently, the Tribunal affirmed the decision to refuse the nomination.