STAR SEED PTY LTD (Migration)

This matter concerned an application for approval of a nomination of occupation under the short-term stream, specifically for a Cook or Chef. The applicant sought to have the nominated position approved, but the delegate refused the nomination. The applicant then sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for approval of the nomination, particularly concerning the genuineness of the nominated position. This involved assessing whether the position was genuine and full-time, as required by regulation 2.72(10) of the Migration Regulations 1994. The Tribunal also considered its obligation to assess the criteria based on the evidence before it at the time of its decision.

The Tribunal reasoned that a genuine position requires a qualitative assessment of the position and its alignment with the nominated occupation, referencing the approach in *Cargo First Pty Ltd v MIBP* [2016] FCA 30. Factors to consider included the tasks performed, the financial performance of the nominator, and its capacity to employ the nominee. In this case, the delegate was not satisfied that the business could financially support the position or that the business was operating at a level consistent with the nominated occupation being genuine. Despite an invitation to provide updated information, the applicant failed to submit financial statements for the most recent year and provided only limited financial information for the preceding two years. The Tribunal noted that it must make its decision on the evidence before it.

Consequently, the Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not satisfied the criteria for approval.