VN STREET FOODS PTY LTD (Migration)

This matter concerned an application by VN Street Foods Pty Ltd for approval of a nomination for a Temporary Skill Shortage (TSS) Subclass 482 visa for the occupation of Chef. The applicant operates two Vietnamese restaurants in Sydney. The core dispute revolved around whether the nominated position was genuine and whether the applicant had demonstrated a compelling need for another Chef.

The legal issues before the Tribunal were whether the applicant met the criteria for approval of the nomination, specifically focusing on regulation 2.72 of the Migration Regulations 1994. This included determining if the nominated position was genuine, as required by reg 2.72(10)(a), and if the applicant had demonstrated a compelling need for the role, considering the applicant's existing staffing structure and business operations. The Tribunal also considered the applicant's history of lodging numerous similar nomination applications for the same nominee.

The Tribunal reasoned that a genuine position requires a qualitative assessment of the role in light of the specific facts and circumstances of the business, as established in *Cargo First Pty Ltd v MIBP* [2016] FCA 30. In this instance, the Tribunal found no compelling evidence to support the applicant's need for an additional Chef, particularly given the applicant's history of multiple, similar nominations for the same individual. The Tribunal concluded that the position associated with the nominated occupation was not genuine.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.