1417213 (Migration)

The Administrative Appeals Tribunal considered an application by a party seeking approval of a nomination for a visa. The core dispute revolved around whether the nominated position was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994. The applicant contended that the nominated position, described as an Advertising and Sales Manager (ANZSCO code 1311), met the necessary criteria, while the delegate of the Minister had refused the nomination on the grounds that the position was not genuine.

The Tribunal was required to determine if the nominated position was genuine, specifically whether the tasks of the position were substantially equivalent to those outlined in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for an Advertising and Sales Manager. This involved assessing the evidence provided by the business director regarding the actual duties performed and comparing them to the indicative tasks listed in ANZSCO. The Tribunal also considered whether the director possessed a sufficient understanding of the business and the nominated role to satisfy the requirements of the regulations.

In its reasoning, the Tribunal noted that the director's evidence regarding the tasks of the position was often vague and repetitive of the written submissions, failing to provide a detailed or convincing account of how the role integrated into the business or added value. While acknowledging the need for a sales and marketing function within the company, the Tribunal was not satisfied that the nominated position encompassed a significant number of the tasks typically associated with an ANZSCO-defined Advertising and Sales Manager. Instead, the Tribunal concluded that the role appeared to be more akin to a lower-level position, such as a sales or marketing representative or assistant. Consequently, the Tribunal found that the position associated with the nominated occupation was not genuine, and therefore, the applicant did not meet the applicable criteria for the nomination to be approved.

The Tribunal affirmed the decision to refuse the nomination.