Smooth Sailing Ventures Pty Ltd (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the nomination of an occupation by Smooth Sailing Ventures Pty Ltd (the applicant) for a Subclass 457 visa. The applicant sought to nominate a position for a Chef (ANZSCO 351311). The core of the dispute revolved around whether the nominated position was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant met the criteria for approval of the nomination, specifically whether the nominated position for a Chef was genuine. This involved assessing whether the applicant was currently trading as a restaurant and, consequently, had a current need for a Chef. The Tribunal also considered the legal principle that a qualitative assessment of the position is required to determine its genuineness, as established in *Cargo First Pty Ltd v MIBP* [2016] FCA 30.

The Tribunal found that the applicant had informed it that their restaurant in Osborne Park was sold in October 2021 and that the business was in the process of securing new premises. Further investigation revealed a Facebook page for "Fushi" which indicated a pop-up at Rifresso had ended in December 2020, with no subsequent updates regarding a new location. Based on this evidence, the Tribunal concluded that the applicant was not currently trading as a restaurant and therefore had no current need for a Chef. Consequently, the Tribunal was satisfied that the position associated with the nominated occupation was not genuine, and the requirements of regulation 2.72(10)(f) were not met.

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