Syawish Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Syawish Pty Ltd concerning the refusal of a nomination for a Subclass 457 visa. The core of the dispute revolved around whether the nominated position was genuine and if the employer had the financial capacity to sustain the proposed employment. The Tribunal was tasked with determining if the applicant met the criteria for approval of the nomination under the Migration Regulations 1994, specifically Regulation 2.72 and section 140GBA.

The Tribunal was required to assess the genuineness of the nominated position and the employer's financial ability to support the nominated employee. This involved scrutinising the evidence provided, including a statement of genuine position, letters outlining duties, an employment contract, and various advertisements. The Tribunal had to consider whether the submitted documentation sufficiently demonstrated that the position was real and that the business could sustain the proposed salary of $97,000.

In its reasoning, the Tribunal found the evidence insufficient to satisfy the requirements. While the described duties aligned with the ANZSCO definition for the role, the Tribunal was not convinced the nominee would perform these tasks. Crucially, there was a lack of verifiable evidence regarding the business's financial position and no clear indication that the nominated position was warranted. The advertisements submitted were not directly relevant to the applicant's business, and the employment contract lacked detail on the duties. Consequently, the Tribunal affirmed the original decision to refuse the nomination due to insufficient evidence that the nominated position was genuine and that the business could sustain it.