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457 Nominations and the Test of Genuiness

How can you tell if a position that has been nominated by a Standard Business Sponsor is “genuine”, and thus meets the test for approval specified in sub-regulation 2.72(10)(f)?

This is an issue that seems to plague all too many efforts by employers to sponsor overseas employees for temporary skilled employment, isn’t it?

Especially so, again it seems, when the position that is nominated is that of “Sales and Marketing Manager”.

Is the issue of “genuineness” something that is entirely “qualitative” and “subjective”, so that we are reduced to the analysis used by the Justice Potter Stewart of the US Supreme Court to attempt to define obscenity (in the case of Jacobellis v Ohio):  “I know it when I see it”.

Or is it susceptible to the reductive analysis of the Duck Test: “If it walks like a duck, swims like a duck and quacks like a duck, then it must be a duck!”

These questions of how to define genuineness in connection with a proposed nomination made by a sponsoring employer have been raised again by a decision that was handed down by Judge Driver of the Federal Circuit Court in a case that was decided earlier this week, Australia Abalone World Pty Ltd v Minister for Immigration & Anor  (2017) FCCA 252 (15 March 2017).

Does this decision advance our understanding of when the position identified in a nomination is “genuine”? 

Well, what the decision does is endorse an analytical approach that was approved both in the Federal Circuit Court and by the Federal Court in the Cargo First decisions that were handed down previously in 2015 and 2016, Cargo First v Minister for Immigration (2015) FCCA 2091 and Cargo First Pty Ltd v Minister for Immigration (2016) FCA 30.

That Cargo First approach, enunciated by Judge Smith in the Federal Circuit Court, involves a two-fold process:

1. Determine whether the position in question is genuine in that it actually exists; and

2. A qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor.

As outlined again in Australia Abalone World, this second exercise involves comparing the description of the occupation that is given in the ANZSCO guidelines with the duties of the position proposed in the nomination, especially as described in the employment contract.

In Australia Abalone World, the nominated position was again for a “Sales and Marketing Manager”.

It was proposed to nominate a person whose contract of employment described her proposed duties as “taking charge of the company’s coffee shop operations in China including setting up and daily management”.  A suite of responsibilities was identified in her contract including:

  • Set up sales and marketing strategy to promote the company’s coffee shops in China;
  • Liaise with Chinese wholesalers, retailers and government officials;
  • Assist the company’s operations on a day to day basis;
  • Scheduling work, including liaising with other professionals in China;
  • Promoting and marketing the business in China;
  • Represent the employer to select appropriate clients;
  • Providing advice as to business practices, government regulations, government regulations and banking and commercial procedures;
  • Review, approve and execute company documents.

The approach followed by the Tribunal in Australia Abalone World  was to compare the ANZSCO description of the occupation “Sales and Marketing Manager”  with the nominee’s contract.

The Tribunal found that the ANZSCO description of “Sales and Marketing Manager” was:

“Plans, organizes, directs, controls and coordinates the sales and marketing activities within an organization.”

The Tribunal found that while some of the duties listed in the employment contract fell within the ANZSCO description for a Sales and Marketing Manager, the balance of the duties were “unrelated”.  As the Tribunal concluded that a “wide range” of the duties of the nominated position were not consistent with the duties of a Sales and Marketing Manager as described in ANZSCO, it was not satisfied that the position was genuine.

In the Federal Circuit Court, it was submitted on behalf of Australia Abalone World  that the Tribunal had committed jurisdictional error by failing to consider whether the nominee’s main duties would involve a significant proportion of time being devoted to the duties of a Sales and Marketing Manager.

However, Judge Driver rejected this ground. The Court’s analysis did not focus on whether the majority of the nominee’s time at work would be devoted to the duties described in ANZSCO for a sales and marketing manager. Rather, the Court noted that the Tribunal’s finding that a substantial number of the duties identified in the proposed contract were unrelated to the duties of a sales and marketing manager, and that on that basis, it was open to the Tribunal to conclude that the nominated position was not genuine.

What do you think of this analysis? Was this the correct approach? Was it unduly subjective? Does it get us past the: “I can’t tell you what it is but I’ll know It when I see it/if it quacks like a duck test?

Suppose the vast majority of a nominee’s time will be taken up by the duties of the nominated occupation, but the contract of employment lists a number of other duties that fall outside the description of the occupation in ANZSCO.  What if the intention is that the nominee will only spend a tiny fraction of her/his time on these unrelated duties? Is that enough to cause the nomination to fail the test of genuineness?

Apparently so!

It is equally apparent that this type of issue is likely to be revisited in future decisions.

Questions: This email address is being protected from spambots. You need JavaScript enabled to view it.

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Comments

  • Michael Jeremy
    Michael Jeremy Friday, 17 March 2017

    Michael, the fact that FCCA even had to deal with this is extraordinary.

    The regulatory requirements for the employer nomination appear simple BUT these are constructed around very dated, generic "occupation code descriptors" which are generated through responses to occupation in the census in Australia.

    The assessment of the genuine position requirement commences with descriptors from the time before smart phones and then requires an unknown functionaire to make a decision based on commercial and business documents that pertain to any industry, business size or demographic area relevant to Australia.

    This is then all bound up in whether duties from the descriptor are sufficiently encountered on a "job description" that was constructed without any of the above gobbledygook in mind.

    The best way to deal with this hog wash is a site visit.

    A good advisor can then translate all the above element into something that will be "genuine".

    This is a huge amount of work.

    The SBS/EN/457 system is a broken frankenstein.

    Yes, the judgements that litter the judicial system are interesting in "interpretation". But Australian employers don't have the time or the resources for this stuff.

  • Guest
    Guest Wednesday, 22 March 2017

    I would say a lot of consideration is needed.

    "Yes, the judgements that litter the judicial system are interesting in "interpretation". But Australian employers don't have the time or the resources for this stuff."

    Isn't that what Agents are for - to navigate this "gobbledygook" for them? The review of tribunal/court decisions is therefore essential knowledge and not just "interesting".

    I for one find the analysis from Michael extremely useful. Not just "interesting".

  • Guest
    Guest Wednesday, 22 March 2017

    I would say d

  • Guest
    Raul Senise Tuesday, 21 March 2017

    ANZSCO is dated and limited in scope.

    In this example, how do you compare the duties of the position to the ANZSCO occupation objectively?

    Do you compare the duties to the “tasks included” section for the group? This would be difficult as the group includes occupations such as Public Relations Manager which may not be relevant.

    Do you compare the duties to the very short one line description under the occupation itself? How do you compare the duties of a senior position such as Sale and Marketing Manager, to a one line summary?

    To confuse the issue even further, the occupation of Sale and Marketing Manager contains the “specialisations” of Business Development Manager and Market Research Manager. Do these specialisations, of the same occupation, have the same duties?

    We as Agents are tasked with comparing a Position Description which can be pages long, with the ANZSCO role summary of one line and deciding whether an unknown case officer will consider the position genuine. Not an easy task.

  • Guest
    Westly Russell RMA 0316072 Thursday, 23 March 2017

    I have a query about 'genuiness' in respect of a 457 applicant who has been working in the role in Australia for 3+ years, 1 year training and 2 years full time and now taking the full responsibility for management of the enterprise; one of the principals having retired and the othe due to give (having given?) birth.

    I also received a communication about an (quote) inexplicable salary increase and a request for a skills assessment for which my client qualifies to apply via VETASSESS, but not for a '457' skills assessment.

    The 'centre of excellence' has been battling on since 5 October 2016.

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Guest Monday, 01 May 2017