Subclass 482 – Skills in Demand nomination refusal for genuineness at the High Court

The High Court of Australia has made its fair share of decision on the interpretation of migration law. The ability for someone to enter or remain in Australia ranks high in motivation to take an adverse decision all the way to the highest court in the land.

What is unexpected is when it would be far more financially feasible to relodge an application instead of taking the matter up with the judiciary. The case of San Bao Pty Ltd v Minister for Immigration and Citizenship [2026] HCA 6 did just that, and on a common ground for refused nominations.

The applicant, Bao Pty Ltd, a restaurant trading as "Yummy Street Food" had a subclass 482 – Skills in Demand nomination application refused because the delegate did not believe the position was genuine. Instead of applying to the Administrative Review Tribunal (‘ART’) for merit’s review, the deadline to lodge such an application lapsed and the business used the High Court’s original jurisdiction for review.

The three judges noted that this may be considered an abuse of process given that they did not seek the usual hierarchy of review: merits review at the ART, then the lower courts. Because they did not do this, the High Court could not remit the matter to a lower court. Despite this, it did not stop the High Court from reviewing the application.

The nomination application was refused because the application did not meet regulation 2.72(10)(a) of the Migration Regulation 1994 (Cth), which requires that “the position associated with the nominated occupation is genuine.”

The primary claim was that the delegate deciding the application did not consider the organisational chart that was provided with the application and therefore the decision was unreasonable. The judges, however, countered that the organisational chart provided did not show “chains of responsibility and the division and allocation of duties of cooks (both amongst themselves and in relation to other employees)”. The chart in the annexure had a hierarchy but no reporting lines. This is despite references to chefs and cooks in a genuine position statement.

This case has a few important lessons. The first is that without an underlying narrative and evidence that can be referred to, delegates may make adverse conclusions, something that an applicant does not want. The second is that the “genuineness” regulation is highly subjective, so it would take a considerable argument to prove a decision is legally incorrect. The third is that the proper way to seek redress is to go through the usual channels of merits review at the ART first. This is because there is more scope to rectify the application and provide more information where necessary. It is unknown why the business did not pursue this path.

It may have been an expensive lesson.