1508272 (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Department of Immigration to refuse the approval of a nomination for a Subclass 457 visa. The applicant sought approval for the nomination of Akber Khan for the occupation of Customer Service Manager (ANZSCO Code 149212), with a stated base rate of pay and guaranteed annual earnings of $54,000. The applicant provided documentation including advertisements, an employment contract detailing the nominee's duties, and a letter from the applicant's director asserting the genuineness and essential nature of the position for their business, which supplies windows and doors.

The primary legal issue before the Tribunal was whether the nominated position of Customer Service Manager was genuine, as required by migration regulations. This involved assessing whether the duties described for the role aligned with the standard definition of a Customer Service Manager and whether the position was truly necessary for the applicant's business operations, particularly in light of the nominee's existing Subclass 457 visa status. The Tribunal also considered the criteria for approving a nomination under section 140GB of the Act and Regulation 2.72 of the Migration Regulations 1994, specifically the requirement that the nominated position be genuine.

The Tribunal reasoned that while the applicant provided a comprehensive list of duties for the Customer Service Manager role and asserted its necessity for customer satisfaction and business growth, the evidence did not sufficiently demonstrate that the position was genuine. The Tribunal noted that the nominee was already occupying the position on a Subclass 457 visa, and the applicant's submissions did not adequately establish why this specific role, as described, was essential to the business's operations beyond what might be handled by existing staff or a less senior role. 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 Department's decision not to approve the nomination.