J Carter & K Ozpolat (Migration) - [2025] ARTA 2144

J Carter & K Ozpolat (Migration) [2025] ARTA 2144 (2 July 2025)
DECISION AND
REASONS FOR DECISION
Applicant:J Carter & K Ozpolat
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2300205

Tribunal:General Member P Maishman
Place:Perth
Date: 2 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for reconsideration, in accordance with the order that the nomination meets the following criteria:
·reg 2.72C(12) of the Regulations.

Statement made on 02 July 2025 at 4:05pm

CATCHWORDS
MIGRATION – approval of a nomination – Employer Sponsored stream – position of Retail Manager (General) – genuine position – tasks that the position – managerial position for lengthy operating hours – training and supervision of staff – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140
Migration Regulations 1994, rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 2022 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72C of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 19 October 2021. A nomination of an occupation for a Subclass 494 visa is made under s 140GB of the Act and reg 2.73B of the Regulations. The occupation must be nominated for a Subclass 494 visa in one of two alternative streams: the Employer Sponsored stream or the Labour Agreement stream. Regulation 2.72C prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. In this case, the occupation is nominated for a Subclass 494 visa in the Employer Sponsored stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72C(12)(a) because there was insufficient information for the delegate to be satisfied that the position associated with the nominated occupation is genuine.
Mr James Carter, a partner in the applicant, appeared before the Tribunal on 23 May 2025 to give evidence and present arguments.
The Tribunal was assisted by an interpreter of the Turkish and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and remit the matter for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Departments file. The applicant nominated the position of Retail Manager (General – (ANZSCO 142111) to be engaged in its business Istanbul Kebab & Turkish Bakery located in Albany, Western Australia.
The applicant gave the Tribunal a copy of the delegates nomination refusal notice. In summary, the delegate was not satisfied the majority of the tasks that the nominee is actually likely to perform align substantially with the tasks of the nominated occupation of Retail…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading J Carter & K Ozpolat (Migration)

Details

AGLC: J Carter & K Ozpolat (Migration) [2025] ARTA 2144
Case: [2025] ARTA 2144
Decision Date: 2 July 2025

CaseChat Overview and Summary

The case involves the applicants, J Carter and K Ozpolat, who are seeking approval for a nomination under the Employer Sponsored stream for a Retail Manager (General) position at Istanbul Kebab & Turkish Bakery in Albany, Western Australia. The applicants challenged the delegate's decision to refuse their nomination, arguing that the position they nominated is genuine and meets the requirements under the Migration Regulations 1994.

The key legal issues the court had to address were whether the nominated position was genuine, full-time, and likely to exist for at least five years, as required by the regulations. Specifically, the court had to determine if the tasks associated with the nominated position aligned with those of a Retail Manager (General) as described in the ANZSCO, or if they were more closely aligned with a Retail Supervisory position.

The court found that the applicants had demonstrated that the position of Retail Manager (General) was genuinely required for the business, which operates for approximately 20 hours a day. The manager's responsibilities included managing stock levels, replenishing stock, setting service standards, and arranging for the transportation of produce from Perth. The applicants provided detailed evidence about the business operations and the specific duties of the nominee, which the court accepted as meeting the criteria for a genuine position. Consequently, the court set aside the delegate's decision and remitted the matter for reconsideration, finding that the nomination met the regulatory criteria.

The court ordered that the decision not to approve the nomination be set aside and that the matter be remitted for reconsideration, with the nomination to be taken as having met the criteria under section 140GB(2) of the Act and regulation 2.72C(12) of the Regulations. The applicants are now entitled to have their nomination reconsidered in light of the court’s findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to set aside the decision under review and remit the matter for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal had before it a copy of the Departments file. The applicant nominated the position of Retail Manager (General – (ANZSCO 142111) to be engaged in its business Istanbul Kebab & Turkish Bakery located in Albany, Western Australia. The applicant gave the Tribunal a copy of the delegates nomination refusal notice. In summary, the delegate was not satisfied the majority of the tasks that the nominee is actually likely to perform align substantially with the tasks of the nominated occupation of Retail Manager (General) as described in the ANZSCO. The delegate formed the view that the predominant tasks of the position are more closely aligned with those of a Retail Supervisory position (ANZSCO 621511). The issue in the present case is whether the position associated with the nominated occupation of Retail Manager (General) ANZSCO 142111 is genuine. Position must be genuine, full-time, and likely to exist for at least 5 years Regulation 2.72C(12)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72C(12)(b) requires the position to be a full-time position, and reg 2.72C(12)(c) requires the position to be likely to exist for at least 5 years. The Tribunal asked Mr Carter to comment on the delegate’s concern the nominated position did not appear to be responsible for the higher level decision-making tasks identified in ANZSCO 142111 such as budgeting, marketing, pricing and product mix. Mr Carter described that the business Istanbul Kebab and Turkish Bakery was not only a late night kebab shop with seating for 50 people and an extensive menu. Equally significantly is that the business operates as a retail bakery selling directly to the public and to Albany businesses. The business operates for around 20 hours per day taking into account baking and retail operation. Mr Carter said he is a baker and starts at 1 AM and bakes until about 8:30 AM. Mr Ozpolat arrives at about 9 AM and serves the public until about 2:30 PM. Mr Carter says neither he nor Mr Ozpolat have strong English skills and neither of them have the opportunity to undertake invoicing or stock control. Mr Carter and Mr Ozpolat are physically unable to attend the shop for all the hours that it is open and the business therefore requires a retail manager in their absence.Determining product mix, stock levels and service standards. Mr Carter told the Tribunal the nominated position is expected to start from about 2 PM after the baking for the day is completed and most of the lunch service finished. The nominated position is responsible for ensuring stock is replenished. The nominee orders produce and arranges its transportation from Perth twice a week. Produce from Perth is cheaper than locally sourced. The nominee is responsible for receiving bread orders and making sure they are known to the baker for preparation overnight. Given the scope of the business is kebabs and bakery there is no functional need for product mix to be determined. The nominee is responsible for setting service standards because his English is the strongest and he has the most communication with customers and clients. Formulating and implementing purchasing and marketing policies, and setting prices. Promoting and advertising the establishment's goods and services.

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicant meets reg 2.72C(12) for the nomination. Accordingly, the decision under review will be set aside and remitted for reconsideration.DECISION The Tribunal sets aside the decision not to approve the nomination and remits the matter for reconsideration in accordance with the order that the nomination must be taken to have met the following criteria for approval under s 140GB(2) of the Act: ·reg 2.72C(12) of the Regulations.Date(s) of hearing: 23 May 2025Representative for the Applicant: Mr Lance Fee (MARN: 9790067)ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa(1)This regulation applies in relation to a person who:(a)is any of the following:(i) a standard business sponsor;(ii) a person who has applied to be a standard business sponsor;(iii) …(iv) …(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.(4)The Minister is satisfied that either:(a)there is no adverse information known to Immigration about the person or a person associated with the person; or(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.(5)The Minister is satisfied that:(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or(b)…(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.(6)If the nominee holds:(a)a Subclass 457 (Temporary Work (Skilled)) visa; or(b)a Subclass 482 (Temporary Skill Shortage) visa;the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.(8)The Minister is satisfied that:(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or(ii) …; and(b)the occupation applies to the nominee in accordance with the instrument or work agreement.(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:(a)whether the occupation is:(i) a short term skilled occupation; or(ii) a medium and long term strategic skills occupation; and(b)either:(i) the 6-digit ANZSCO code for the occupation; or(ii) if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:(i) the person who nominated the occupation;(ii) the nominee;(iii) the occupation;(iv) the position in which the nominee is to work;(v) the circumstances in which the occupation is undertaken;(vi) the circumstances in which the nominee is to be employed in the position.(10)The Minister is satisfied that the position associated with the occupation is:(a)genuine; and(b)a full-time position.(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.(11)If:(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and(b)the person is not an overseas business sponsor; and(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);the Minister is satisfied that:(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.(12)If:(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and(b)the person is an overseas business sponsor; and(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);the Minister is satisfied that:(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and(e)the person will give the Minister a copy of the contract signed by the person and the nominee.(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …(14)If:(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;the person has provided evidence to the Minister that the nominee satisfies:(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.(15)Subject to subregulation (16), if:(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;the Minister is satisfied that:(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and(g)either:(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or(ii) it is reasonable to disregard any such information.(16)However:(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and(ii) it is reasonable in the circumstances to do so; and(aa)the Minister may disregard the criterion in paragraph (15)(e) if:(i) under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and(ii) the Minister is satisfied that it is reasonable in the circumstances to do so; and(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:(a)either:(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or(ii) it is reasonable to disregard any such information; and(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.(19)…

Ratio Decidendi

Legal Principle Established

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