Khan v Minister for Immigration and Border Protection

In the matter of Khan v Minister for Immigration and Border Protection, the court was presented with an appeal from the Federal Circuit Court of Australia against the decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) which affirmed a decision of a delegate of the Minister to refuse the appellant, Mr Khan, a Long-Stay Temporary Business (UC) subclass 457 visa. Mr Khan, a citizen of Pakistan, was employed at a Caltex retail franchise outlet where he was nominated for the occupation of customer service manager. The Tribunal found that the position associated with the nominated occupation was not genuine as the written position description did not accurately describe the actual duties of the position.

The primary legal issue the court needed to address was whether the Tribunal was correct in affirming the delegate's decision to refuse Mr Khan a 457 visa on the basis that the position associated with the nominated occupation was not genuine. This required consideration of cl 457.223(4)(d)(ii) of the Migration Regulations 1994 (Cth) which mandates that the Minister must be satisfied that the position associated with the nominated occupation is genuine. The court needed to determine whether the Tribunal had correctly assessed the evidence provided by Mr Khan and his employer to ascertain the genuineness of the position.

The court found that the Tribunal had properly exercised its discretion in affirming the delegate's decision. The Tribunal had carefully considered the evidence, including the employment agreement, letters from Mr Khan’s employer, and other documents provided by Mr Khan. The Tribunal concluded that the duties described in the employment agreement did not accurately reflect the actual duties performed by Mr Khan. The Tribunal was not satisfied that the position was genuinely that of a customer service manager as prescribed by the ANZSCO code. The court upheld the Tribunal’s reasoning and dismissed the appeal.

The final orders of the court were that the appeal be dismissed and that Mr Khan must pay the Minister's costs as agreed or taxed.