MAXMA TRANSPORTATION PTY LTD (Migration)

This matter concerned an appeal by MAXMA TRANSPORTATION PTY LTD against a decision to refuse the nomination of a position. The dispute centred on whether the nominated occupation, Transport Company Manager (ANZSCO 149413), met the relevant legislative criteria for a Subclass 457 visa program nomination, particularly in light of subsequent legislative changes and new ministerial instruments. The decision was made by Member Wan Shum of the Tribunal.

The primary legal issue before the Tribunal was to determine if the applicant met the criteria for approval of the nomination, as stipulated by regulations 2.72 and section 140GBA. Specifically, the Tribunal had to consider whether the nominated occupation and its code corresponded to an occupation listed in the applicable instrument, IMMI 17/060, and whether any inapplicability conditions introduced by new ministerial instruments made after 19 April 2017 excluded the nominated position. These conditions included requirements relating to the predominance of low-skilled tasks, the business's annual turnover, and the number of employees.

The Tribunal reasoned that while the nominated occupation was listed in IMMI 17/060, new inapplicability conditions applied. The Tribunal found that the position of Transport Company Manager was excluded if it predominantly involved low-skilled tasks such as truck driving, if the business had an annual turnover of less than AUD1,000,000, or if it had fewer than 5 employees. Evidence presented indicated the business's annual turnover was approximately $500,000 for the financial year ending 30 June 2018, and while there were 6 full-time employees plus casual staff, the nature of the duties performed by the nominated manager and another employee, including tasks like rostering, customer contact, and financial administration, were examined in relation to the low-skilled task exclusion.

Ultimately, the Tribunal was not satisfied that the applicant met the applicable criteria for the nomination to be approved. Accordingly, the decision under review to refuse the nomination was affirmed.