Serhan Refrigeration Pty Ltd (Migration)

This matter concerned an application by Serhan Refrigeration Pty Ltd for approval of a nominated position as an Air-conditioning and Refrigeration Mechanic. The Tribunal was required to determine whether the nominated position was genuine and whether the nominee possessed the necessary qualifications and experience. The Tribunal also considered the Labour Market Testing conducted by the applicant, which involved a four-month poster advertisement and a five-month period of seeking potential employees by word of mouth.

The primary 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 nominee had the requisite qualifications and experience for the role. The Tribunal also examined the adequacy of the Labour Market Testing undertaken by the applicant to demonstrate that no suitably skilled Australian worker was available for the position.

In its reasoning, the Tribunal applied the principles established in cases such as *Cargo First Pty Ltd v MIBP* [2016] FCA 30, which permits a qualitative assessment of the nominated position against the occupation details. The Tribunal noted that while departmental policy, such as the Procedures Advice Manual (PAM3), may guide decision-makers, it is not legally binding. The Tribunal found that the nominated position was not genuine, partly due to the nominee being the brother of the business director and sole shareholder, and the business's reliance on subcontractors and the director working for other businesses as a subcontractor. The Tribunal also considered that the nominee required additional training and work experience to obtain a Victorian Building Authority licence, indicating a potential lack of immediate suitability for the role.

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