Michellechen Pty Ltd (Migration)

This matter concerned an appeal by Michellechen Pty Ltd against a decision to refuse its nomination for a Café or Restaurant Manager position. The core of the dispute revolved around whether there was a genuine need to employ a restaurant manager on a full-time basis, or if the position was created primarily to facilitate the entry or stay of the nominee in Australia. The decision was heard by Antonio Dronjic, a Member of the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination, specifically focusing on regulation 2.72(10)(f) of the Migration Regulations 1994, which mandates that the position associated with the nominated occupation must be genuine. This involved assessing not only the existence of the position but also whether it truly reflected the nominated occupation, to prevent the migration scheme from being undermined. The Tribunal also considered departmental policy, acknowledging it could be guided by such policy but was not bound by it.

In reaching its decision, the Tribunal applied the principles established in *Cargo First Pty Ltd v MIBP* [2015] FCCA 2091, which clarified that assessing the genuineness of a position requires a qualitative analysis and comparison with the nominated occupation. The Tribunal noted that departmental policy, as outlined in PAM3, suggests that the 457 visa program is intended to address labour shortages and should not be used to create positions solely to facilitate a nominee's entry or stay. The Tribunal found that the evidence before it did not satisfy it that the nominated position was genuine, thus failing to meet the requirements of regulation 2.72(10)(f).

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