Financier Software Pty Ltd (Migration)

This matter concerned an application for merits review by Financier Software Pty Ltd (the applicant) of a decision by the Department of Home Affairs to refuse to approve its nomination of a proposed employee for a Subclass 482 (Temporary Skill Shortage) visa, Medium-term stream. The applicant sought to sponsor a nominee for the occupation of Accountant (General).

The primary legal issues before the Tribunal were whether the nominated position was genuine, as required by regulation 2.72(10)(a) of the Migration Regulations 1994, and whether the applicant had complied with the contractual requirements under regulation 2.72(11). The Tribunal was required to determine if the position offered to the nominee genuinely corresponded to the nominated occupation of Accountant (General) and if the employment arrangements met the regulatory criteria.

The Tribunal found that the position offered, described as "Software Support & Junior Consultant," did not align with the duties typically associated with an Accountant (General) as defined by the Australian and New Zealand Standard Classification of Occupations (ANZSCO). The applicant's business primarily involved developing and exporting specialist business modelling software, a skill set not generally part of a general accountant's usual duties. Furthermore, while an employment contract was eventually provided, the Tribunal noted that the position itself was not considered genuine in relation to the nominated occupation. As regulation 2.72(10)(a) was not satisfied, the Tribunal was not required to consider other outstanding requirements.

Consequently, the Tribunal affirmed the Department's decision not to approve the nomination. The Tribunal concluded that as a mandatory regulatory requirement had not been met, it had no discretion to waive compliance, and therefore the nomination could not be approved.