1412897 (Migration)

This matter concerned an application to review a decision to refuse a nomination for a Subclass 457 visa. The applicant sought to have the nomination approved, but the delegate had refused it on the grounds that the nominated position was not genuine, a requirement stipulated by regulation 2.72(10)(f) of the Migration Regulations 1994. This regulation mandates that the position associated with the nominated occupation must be genuine.

The central legal issue before the Tribunal was whether the applicant had satisfied the criteria for the approval of the nomination, specifically concerning the genuineness of the nominated position. This required the Tribunal to consider the definition of "position" and "nominated occupation" and to compare the tasks of the position within the nominating business against the tasks described in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for the nominated occupation. The Tribunal was guided by analogous case law concerning similar visa criteria, which suggested a multi-faceted inquiry into the nominated occupation, its ANZSCO description, the applicant's claimed duties, and whether these duties were substantially equivalent and actually performed.

The Tribunal reasoned that to determine if the position was genuine, it needed to assess the need for the position within the business and compare the tasks of the position with those outlined in ANZSCO for the nominated occupation of Customer Service Manager. The Tribunal noted that a key certification required from the applicant is that the tasks of the position include a significant majority of the tasks of the nominated occupation. After considering the evidence and the relevant regulations, the Tribunal concluded that it was not satisfied that the applicant had met the applicable criteria for the nomination to be approved.

Consequently, the Tribunal affirmed the original decision to refuse the nomination.