Capmarket & Co Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by Capmarket & Co Pty Ltd concerning the decision not to approve its nomination for a visa. The core of the dispute revolved around whether the nominated occupation, Sales and Marketing Manager (ANZSCO Code 131112), met the criteria stipulated by the Migration Regulations 1994, particularly in light of certain "inapplicability conditions" or caveats attached to that occupation.

The Tribunal was required to determine if the applicant met the criteria for approval of the nomination under section 140GB(2) and section 140GBA of the Migration Act 1958, and relevant regulations, specifically r.2.72. This involved assessing whether the nominated occupation and its code corresponded to those specified in Instrument IMMI 17/060, and whether the occupation was applicable to the nominee. Crucially, the Tribunal had to consider the inapplicability conditions attached to the Sales and Marketing Manager occupation, which included requirements relating to salary, the nature of the position (e.g., not in a front-line retail setting or predominantly involving direct client transactional interaction), and the business's annual turnover.

The Tribunal's reasoning focused on the lack of contemporary evidence provided by the applicant, particularly in response to a request for information. It noted that the applicant's initial portrayal of the nominee's duties, and subsequent attempts to characterise the role as more strategic, were contradicted by job advertising material that suggested significant direct client transactional interaction and a front-line retail setting. Furthermore, the absence of contemporary financial evidence regarding the applicant's operations was considered problematic. The Tribunal concluded that, due to the failure to provide requested information and the evidence suggesting the nominated position did not meet the applicable inapplicability conditions, the applicant had not satisfied the criteria for nomination approval.

Consequently, the Tribunal affirmed the decision under review, meaning the nomination was not approved.