LIAO (Migration)

This matter concerned an appeal by the applicants against a decision to refuse a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream. The first applicant had been nominated by ASPG Pty Ltd for the position of Customer Service Manager (ANZSCO 149212). However, the delegate formed the view that the applicant was not working in the nominated position but rather as a Receptionist, and was therefore not satisfied that the applicant met criterion cl.186.223(1) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the first applicant met the requirements of cl.186.223(1), which mandates that the position to which the visa application relates must be the same position that was nominated and approved, and in which the applicant was identified as the holder of a Subclass 457 visa. This clause also requires the nomination to be approved, not withdrawn, and for the position to remain available to the applicant.

The Tribunal considered the applicant's stated responsibilities as a Customer Service Manager, which included developing and reviewing procedures, consulting about customer service, recommending services, identifying customer needs through surveys, solving complaints, and training staff. However, when questioned about overall management and control of the business's operations, the applicant indicated that her husband, who owned 51% of the business, was responsible for setting fees and types of services, and that she would recommend improvements to him. The Tribunal found that the tasks described by the applicant aligned more closely with the duties of a Retail Manager than a Customer Service Manager, particularly in relation to the overall management and control of the business.

Consequently, the Tribunal concluded that the applicant did not meet the requirements of cl.186.223(1) as the nominated position was not the one in which she was working. The decision under review was therefore affirmed.