Ultraspin Technology Pty Ltd (Migration)

This matter concerned an appeal by Ultraspin Technology Pty Ltd against the refusal of a nomination for a Subclass 457 visa under the Temporary Residence Transition stream. The core of the dispute revolved around whether the nominated occupation for the position matched the occupation carried out by the visa holder. The decision was made by Mary-Ann Cooper, a member of the Tribunal.

The legal issue before the Tribunal was whether the applicant met the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nominated occupation, identified as 'Engineering Professional nec', had the same 4-digit ANZSCO unit group code as the occupation actually carried out by the Subclass 457 visa holder, which was 'Mechanical Engineer'.

The Tribunal reasoned that for a nomination to be approved under regulation 5.19(3)(a)(iii)(B), the nominated occupation must have the same 4-digit occupation unit group code as the occupation carried out by the Subclass 457 visa holder. In this case, 'Engineering Professional nec' falls within ANZSCO Unit Group 2339, while 'Mechanical Engineer' is in Unit Group Code 2335. As these codes differed, the Tribunal found that this specific requirement of the regulations was not met. Despite the applicant's submissions that the roles were similar and that the nominated occupation was the best available match for the duties performed, the Tribunal concluded that the differing unit group codes were determinative.

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