1603961 (Migration)

This matter concerned an appeal by an applicant against the Tribunal's decision to affirm the refusal of a nomination. The core of the dispute was whether the nominated position met the criteria for approval under the Migration Regulations 1994, specifically Regulation 2.72(10)(f), which requires the nominated position to be genuine. The applicant had nominated Mrs. Fenando for the position of Accountant (ANZSCO 2211-11), while the applicant operated a cleaning business.

The legal issue before the Tribunal was to determine if the applicant had satisfied the requirements of Regulation 2.72, and by extension, Section 140GB(2) of the Act, for the nomination to be approved. This involved assessing whether the nominated occupation of Accountant was genuine in the context of the applicant's cleaning business, and whether the nominee possessed the necessary qualifications and experience for the role as defined by the Australian and New Zealand Standard Classification of Occupations (ANZSCO). The Tribunal was required to compare the duties of an Accountant with those of a Bookkeeper, as described in ANZSCO, to ascertain the appropriate classification and genuineness of the nominated role.

The Tribunal reasoned that the duties described for an Accountant, which include planning and providing accounting systems, preparing financial statements, conducting financial investigations, and advising on complex financial matters, were significantly different from the duties of a Bookkeeper. Bookkeepers, as defined by ANZSCO, primarily maintain and evaluate records of financial transactions, monitor cash flow, and prepare basic financial reports. Given that the applicant operated a cleaning business, the Tribunal found it unlikely that the nominated position of Accountant, with its higher skill level and complex responsibilities, was genuine within that context. The Tribunal concluded that the applicant had not demonstrated that the nominated position was genuine, and therefore, the criteria for approval of the nomination were not met.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.