YASH FOODS PTY LTD (Migration)

This matter concerned an application by Yash Foods Pty Ltd for approval of a nomination for a position under the subclass 457 visa program. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination, specifically focusing on whether the nominated position was genuine and whether the nominee met regulatory requirements.

The primary legal issues before the Tribunal were whether the nominated position of Cafe Restaurant Manager, as described in ANZSCO 14111, was genuine, and whether the applicant had satisfied the requirements concerning the identification of a visa holder or applicant for the nominated occupation. The Tribunal also considered the impact of legislative changes, specifically the repeal of the subclass 457 visa program and its replacement with the subclass 482 visa.

The Tribunal reasoned that for a nomination to be approved, the nominated position must be genuine, a requirement assessed by qualitatively evaluating the position and comparing it to the relevant ANZSCO description. In this instance, the delegate was not satisfied that the business operated at a level indicating the nominated position was genuine. Furthermore, the Tribunal noted that the identified nominee did not hold a subclass 457 visa and had no pending application for one, and that the subclass 457 program had been repealed. As the subclass 482 visa was not compatible with a pre-existing nomination application, the nominee could not satisfy the regulatory requirement under r.2.72(5).

Accordingly, the Tribunal affirmed the decision not to approve the nomination, as the applicant failed to meet the prescribed criteria for approval under s.140GB(2) of the Migration Regulations 1994.