SUKSABAI THAI PTY LTD (Migration)

This matter concerned an appeal by SUKSABAI THAI PTY LTD (the applicant) against a decision to refuse the approval of a nomination for a Subclass 457 visa. The nominated occupation was "Massage Therapist – 411611". The Department delegate had refused the nomination, finding that the position was not genuine and had been created solely to achieve a migration outcome for the nominee, who was a relative and former owner/director of the applicant business, sharing the same surname as the current director. The delegate also noted that the employment contract was signed by the nominee's sister at a time when she was not yet a director of the company. The case was heard by Mr S Norman.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the approval of the nomination, specifically 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 evidence demonstrated that the nominated position was to fill a genuine skill shortage or if it had been created for the purpose of obtaining a migration outcome, contrary to the intent of the Subclass 457 visa program.

The Tribunal affirmed the decision to refuse the nomination. The reasoning focused on the lack of evidence that the nominated position was genuine. The Tribunal noted the familial relationship between the nominee and the current director, the nominee's prior association with the business as a former owner/director, and the fact that the nominee shared the same surname as the current director. These factors, combined with the circumstances surrounding the signing of the employment contract by an individual who was not yet a director, led the Tribunal to conclude that the position was likely created to facilitate a migration outcome rather than to address a genuine skill shortage. The Tribunal found that the applicant had been afforded a fair opportunity to provide further relevant information but had not done so, and therefore, discretion would not be exercised to allow further time.

The Tribunal affirmed the decision under review to refuse the nomination.