The Trustee for Demaio NL & JK Family Trust (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the refusal to approve a nomination for a Subclass 457 visa. The applicant, The Trustee for Demaio NL & JK Family Trust, had nominated an arborist position. The core of the dispute was whether the nominated position genuinely reflected the duties of an arborist as defined by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and relevant regulations.

The Tribunal was required to determine if the nominated occupation, Arborist (ANZSCO code 362212), met the criteria for approval under the Migration Regulations 1994, specifically focusing on whether the position was genuine and if the described tasks aligned with the nominated occupation. Regulation 2.72(10)(f) mandates that the nominated position must be genuine, which involves a qualitative analysis and comparison with the nominated occupation.

The Tribunal affirmed the decision to refuse the nomination. While the nominated occupation of Arborist was listed in the relevant instrument (IMMI 16/060) and was applicable to the nominee, the Tribunal found that the described duties were more aligned with a fruit and nut worker. The evidence presented indicated that the business operated an orchard growing apples and stone fruits, and the stated duties of pruning, fertilising, and planting trees, while involving some aspects of tree maintenance, did not encompass the full breadth of tasks typically associated with an arborist as per ANZSCO. The Tribunal applied the principle that a nominated position must genuinely reflect the occupation nominated, requiring a qualitative assessment of the actual duties to be performed.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.