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Tribunal: Member Denise Connolly

A delegate of the Minister for Immigration and Border Protection made a decision to refuse the applicant’s nomination of an occupation for a Subclass 457 visa. On 7 March 2018, the Administrative Appeals Tribunal affirmed the decision.

The applicant operated a building materials supply business and had nominated the occupation Sales and Marketing Manager as the position for the visa. The delegate decided not to approve the nomination on the basis that the applicant did not meet Regulation 2.72(10)(f) of the Migration Regulations 1994, which requires that the position associated with the nominated occupation is genuine.

The applicant confirmed that the nominee had been working in the position for about two years. The applicant indicated that because the business’ stock was constantly changing, he needed the position to source new products. The position would research and source new materials both locally and overseas, mainly from China. The position would make connections with suppliers overseas and the nominee was crucial in the role because he spoke Mandarin.

The Tribunal explained that while it accepted the business needed the position to perform the duties as described, it was concerned that they were not the duties of a Sales and Marketing Manager. The Tribunal also raised its concern that the applicant’s oral evidence was different to the written submissions provided, which indicated that the nominee was undertaking the duties of a Sales and Marketing Manager as described in the Australian and New Zealand Standard of Classification Occupations (ANZSCO). ANZSCO is a skill-based classification for all jobs in the Australian workforce developed by the Australian Bureau of Statistics.

The Tribunal considered all of the duties of the position required by the business and concluded that the business needed the position to undertake a mix of the duties of a Retail Buyer and a Retail Manager, both of which were occupations at a lower skill level than a Sales and Marketing Manager. While the Tribunal was satisfied that the business needed the position to perform the duties currently undertaken by the nominee, it was not satisfied the duties and tasks were those of a Sales and Marketing Manager. The Tribunal was not satisfied that the position would involve undertaking the bulk of the tasks at the level of complexity as described in ANZSCO for the occupation of Sales and Marketing Manager.

The Tribunal was not satisfied that the position required by the business was the nominated occupation of Sales and Marketing Manager and therefore concluded that the position associated with the nominated occupation was not genuine under Regulation 2.72(10)(f).

Read the full written decision on AustLii.