Viv One Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Viv One Pty Ltd for approval of a nomination for a position under the short-term stream of the Temporary Skill Shortage (TSS) visa program. The nominated occupation was that of a cook. The core of the dispute revolved around whether the nominated position was genuine and whether the nominator genuinely needed to employ the nominee, particularly given the nominee's previous employment with the nominator and the nominator's statement that they did not necessarily require the nominee's services.

The legal issues before the Tribunal were whether the nominator met the criteria for approval of the nomination under regulation 2.72 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nominated position was genuine and full-time, as required by regulation 2.72(10)(a) and (b). The Tribunal also considered the broader requirement that the position must be genuine, referencing the approach taken in *Cargo First Pty Ltd v MIBP* [2016] FCA 30.

The Tribunal reasoned that the evidence presented did not satisfy the requirements of regulation 2.72(10). The nominator indicated that while they were prepared to employ the nominee as a sign of support, the nominee had refused to start working again. Furthermore, the nominator acknowledged that the business had sufficient cooks and did not necessarily need the nominee, with the position being offered partly in gratitude for past service. This indicated that the position was not genuine in the sense of meeting a genuine business need. Consequently, the Tribunal was not satisfied that the criteria for approval of the nomination were met.

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