Yasir Hafiz Mohammad Ismail (Migration) - [2025] ARTA 1678

Yasir Hafiz Mohammad Ismail (Migration) [2025] ARTA 1678 (20 August 2025)

DECISION AND

REASONS FOR DECISION

Applicant:Yasir Hafiz Mohammad Ismail
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2320751

Tribunal:General Member M Darian-Smith
Place:Sydney
Date: 20 August 2025
Decision:The Tribunal sets aside the decision under review and remits the application for reconsideration, in accordance with the order that the nomination meets the following criteria:
- Sub regulation 2.72(10)(a)

Statement made on 20 August 2025 at 3:36pm

CATCHWORDS

MIGRATION – approval of nominated position (employer nomination) – Short-term stream – occupation of Technical Sales Representative – genuine occupation – Labour Market Testing – comparison of the position descriptions – organizational chart – overriding business need for the position – position skill set aligns with business requirements – nominee possesses skill set – decision under review remitted

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES

Austwide Laser Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1915
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 November 2023 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings that were not finalized before 14 October 2024 are to be continued and finalized by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant applied for approval on 4 September 2023. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream.
Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The position in question was the occupation described as Technical Sales Representatives Nec – 225499 in the Australian and New Zealand Classification of Occupations (ANZSCO). Occupations in this group include Sales Representative (Educational Products and Services). The delegate decided not to approve the nomination on the basis that the applicant did not satisfy the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Yasir Hafiz Mohammad Ismail (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] ARTA 1678
Decision Date: 20 August 2025

CaseChat Overview and Summary

The case before the Tribunal involves Yasir Hafiz Mohammad Ismail, who sought approval for the nomination of a Technical Sales Representative for a short-term stream employer nomination. The Tribunal was required to decide whether the nominated position met the criteria under regulation 2.72(10)(a) of the Migration Regulations 1994. This decision followed a rejection by a delegate of the Department of Home Affairs, and the Tribunal's role was to review that decision based on the evidence presented.

The key legal issue for the Tribunal was whether the Technical Sales Representative position was genuine and if it met the requirements under the regulations. This involved examining the evidence provided by the applicant, including the organizational chart, genuine need statement, labour market testing documentation, and other supporting materials. The Tribunal needed to determine if the position was necessary for the business, if the nominee's skills matched the position requirements, and if the labour market testing was properly conducted.

The Tribunal found that the evidence demonstrated the position was indeed genuine and necessary for the business. The Technical Sales Representative role required specific skills that were difficult to find in the labour market, as evidenced by the recent recruitment campaign. The nominee possessed the required skills, including fluency in Arabic, deep knowledge of the Qu'ran, and expertise in social media and internet communication. Additionally, the financial projections indicated a significant increase in revenue contingent upon the recruitment of a qualified Technical Sales Representative. Based on this evidence, the Tribunal concluded that the nomination met the criteria and remitted the matter for reconsideration with the instruction that the nomination should be approved.

In light of the Tribunal's findings, the decision under review was set aside, and the matter was remitted to the Department for reconsideration, with the direction that the nomination meets the criterion in sub regulation 2.72(10)(a).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has decided to set aside the decision under review and remit the matter for reconsideration with the order that the nomination meets the criterion in sub regulation 2.72(10)(a).CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The labour market testing requirements in s 140GBA must be met. The Tribunal notes that evidence was submitted to demonstrate and satisfy it the labour market testing requirements have been met. Labour Market Testing was carried out by the applicant between 5 June 2023 and 23 July 2023, and more recently between 25 June and 23 July 2025. (Applicant’s First Submission, [6] – [7]) The Tribunal has read and carefully considered all the evidence previously presented to the delegate and the Department. The Tribunal in conjunction with the evidence previously submitted to the delegate has carefully read and considered all the evidence presented to it, prior to making this decision. The Tribunal has had more information and evidence available to it than was before the delegate when the nomination application was rejected. The applicant provided initial written submissions dated 18 June 2025 (Applicant’s First Submissions) with supporting documents and further written submission dated 23 July 2025 (Applicant’s Second Submissions) with supporting documents. The documentation which accompanied the Submissions, and which was before the Tribunal in evidence, included the following: (a) Organizational Chart. (b) Genuine Need Statement dated 15 July 2025. (c) Labour Market Testing documentation (summarizing domestic recruitment activities). (d) Employment contract between the Al-Hafiz Quranic Centre and the nominee dated 1 August 2023. (e) Supplementary statement of the applicant dated 15 July 2025. (f) Correspondence from Ahmad Nabi, the tax agent and accountant of the Al-Hafiz Quranic Centre dated 23 July 2025. and (g) Financial information including income tax returns for the applicant and Financial Reports for Yasir Hafiz Mohammad Ismail trading/as Al Hafiz Quranic Centre. In addition, the Tribunal received evidence from the applicant, covering the following points: (a) The Technical Sales Representative position is an important and genuine role which requires the person in the position to have a very deep knowledge of the Qu’ran, to be a fluent Arabic speaker and to also have the necessary social media and internet knowledge and skills to communicate effectively with young people. (b) The unique combination of skills required for the role has made it very difficult to fill the role. In the most recent recruitment campaign in 2025, there were about 35 applicants. None of them had all the required skills for the position, as the nominee does. (c) The Centre has been growing rapidly in recent years, and it has ceased to be possible for the applicant himself to manage all aspects of the Centre and to pursue the growth agenda for the Centre without the nominated full-time position being filled. (d) The applicant referred to the letter dated 23 July 2025, from Mr Nabi, Principal Accountant at Nextzen Taxation Pty Ltd, the external accountants for the Centre, which expressed the following opinion: “This letter is to confirm that based on our review of the most recent financial statements of [the Centre], and considering the Centre’s current growth trajectory, strategic expansion initiatives, and historical financial data, we project a 30% increase in annual revenue for the financial year ending 30 June 2026, contingent upon the recruitment of a qualified Technical Sales Representative and the launch of the planned educational and digital initiatives.” and(e) The nominee understands the business model and the vision for the Centre, he has a very deep knowledge of the Qu’ran and, having been born in Saudi Arabia, has the complete command of the Arabic language needed for the role. In addition, the applicant has studied computer science and can bring that expertise into the various social media avenues of communication with the Centre’s student body.Regulation 2.72(10)(a) - Position must be genuine and full-time