1504839 (Migration)

This matter concerned a review by the Tribunal of a delegate's decision to refuse a nomination for a Subclass 457 visa. The applicant had nominated the prospective employee as a "customer service manager." The core of the dispute revolved around whether the nominated position was genuine and satisfied the requirements of regulation 2.72(10)(f) of the Migration Regulations 1994.

The Tribunal was required to determine whether the nominated position was genuine, a test that involves not only whether the position exists but also whether it truly is what it purports to be. This necessitates a qualitative analysis of the duties and tasks the nominated employee is to discharge, and a comparison of these with the occupation as described in the Australian and New Zealand Standard Classification of Occupations (ANZSCO). The Tribunal also considered the definition of a "manager" as a person with a primarily executive or supervisory function.

The Tribunal applied the principles established in *Cargo First Pty Ltd v MIBP*, which mandates a qualitative assessment of the nominated position against the ANZSCO description. The Tribunal found that the concept of "manager" was central to the nominated occupation and that the duties and responsibilities of the position, as presented, did not sufficiently demonstrate the executive or supervisory functions typically associated with a manager. Consequently, the Tribunal was not satisfied that the position was genuine or that regulation 2.72(10)(f) had been met.

The Tribunal affirmed the delegate's decision to refuse the nomination.