The Trustee for Cinderella Trust (Migration)

The Administrative Appeals Tribunal considered an appeal by The Trustee for Cinderella Trust concerning a decision to refuse the nomination of an occupation. The applicant had nominated the occupation of Café or Restaurant Manager for a Subclass 457 visa. The core of the dispute revolved around whether the nominated position was genuine, as required by migration regulations.

The Tribunal was required to determine if the nominated position of Café or Restaurant Manager was genuine, a criterion stipulated by regulation 2.72(10)(f) of the Migration Regulations 1994. This involved a qualitative assessment of the position and its comparison with the nominated occupation, as guided by principles established in cases such as *Cargo First Pty Ltd v MIBP* [2016] FCA 30. The Tribunal also needed to consider the applicant's financial standing and operational status to ascertain the viability of the business and the genuineness of the employment position.

The Tribunal affirmed the decision to refuse the nomination, finding that the nominated position was not genuine. This conclusion was based on a lack of satisfactory evidence demonstrating that the Blue Lotus Coffee House was genuinely trading and financially viable at the time of the decision. Concerns were raised by the absence of financial performance data from April 2020 onwards, a handwritten tax return indicating a net loss for the 2019 financial year, and the presence of correction fluid on Business Activity Statements, which cast doubt on their veracity. Consequently, the Tribunal was not satisfied that the applicant, trading as the Blue Lotus Coffee House, was genuinely trading and possessed the requisite finances to sustain the nominated position. The Tribunal noted these concerns for potential referral to other relevant agencies.