NEOSTECH PTY LTD (Migration)

This matter concerned an application for approval of a nominated position for a Temporary Skill Shortage (TSS) visa, subclass 482, in the medium-term stream. The applicant was Neosteck Pty Ltd, and the nominee was an individual seeking employment. The decision was made by Alan McMurran, a Member of the Tribunal.

The core legal issues before the Tribunal were whether the nominated occupation and the occupation specified by the nominee in their related visa application corresponded, and whether the nominated position was genuine and met the requirements of the relevant legislative instrument. Specifically, the nomination was for "ICT Customer Support Officer" (ANZSCO 313112), while the nominee's TSS visa application nominated "Computer Network and Systems Engineer" (ANZSCO 263111). Regulation 2.72(8) of the Migration Regulations 1994 requires that the nominated occupation and its code correspond to an occupation and code specified in the relevant instrument, and that the occupation applies to the nominee.

The Tribunal reasoned that a nomination cannot be approved for two separate occupations, and the discrepancy between the occupation nominated by the employer and the occupation specified by the nominee was critical. The Tribunal noted that the occupation as nominated must be the occupation that applies to the nominee, and a differently specified role by the nominee could not substitute for the employer's nomination. As there was no explanation provided for this discrepancy and no attempt made to correct the information, the Tribunal was not satisfied that the applicable criteria for the nomination had been met. Consequently, the Tribunal affirmed the decision not to approve the nomination.