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