Australian Immigration Daily News

Readers of this blog may be aware that in the weekly newsletter that our sister organization, the Migration Institute of Australia, released on 24 February, it reported that it was receiving a large number of complaints from RMAs that nominations of occupations for  457 visas are being refused on the basis that the position for which the sponsoring employer has nominated  is “not genuine”. 

It is therefore timely to review a recent decision of the Federal Court of Australia that dealt with the question of how the “genuineness” of a position is to be determined.  That case was Cargo First Pty Ltd v Minister for Immigration and Border Protection (2016) FCA 30 (3 February 2016). 

(I would like to note that our colleague at the Migration Alliance, Chris Levingston, acted for the sponsoring company in these proceedings at the Federal Circuit Court level, and thus presumably also before the Federal Court!) 

So, what was this case all about? 

The sponsoring company, Cargo First, is the operator of a “Muffin Break” franchise in Queensland (they don’t seem to exist in the” wilderness” of NSW!).  Cargo First had been approved by the Department as a Standard Business Sponsor.  It sought to nominate the occupation of “Sales and Marketing Manager”  for a 457 visa. 

However, the Department refused the application for approval of the nomination on the basis that it did not satisfy the test of “genuineness” that is imposed by Regulation 2.72(f). 

As RMAs will be aware, Regulation 2.72(10) includes two primary criteria of concern.  Regulation  2.72(10)(e) requires the sponsoring employer to certify in writing that the tasks of the nominated position include a significant majority of the tasks of the nominated occupation as listed in ANZSCO.  And Regulation 2.72(10)(f) requires the sponsor to certify in writing that “the position associated with the nominated occupation is genuine. 

In the course of the proceedings before the Federal Court, it appears that it was ultimately conceded by Cargo First that the correct interpretation of Regulation 2.72 is that it enables  “the Minister” (in other words, the Department) to  “go behind”, or “reach its own state of satisfaction” as to the matters that are certified by the sponsoring employer.  In other words, just because the sponsor “certifies” that the tasks that will be carried out by the person holding the nominated position will correspond with the tasks for that occupation as described in ANZSCO, and that the position is “genuine”, does not disable the Department from conducting its own independent assessment of those matters. 

In Cargo First,  the Federal Court accepted that the approach toward the interpretation of Regulation 2.72(10) that was adopted in the case by the Federal Circuit Court  should be followed.  Namely,  that what is involved in determining whether the criteria of Regulation 2.72(10)(e) and (f) has been satisfied consists of 2 main elements: 1) assessing whether the position is “genuine” not only that it actually “exists” at the sponsoring employer but that it “really is what it purports to be”); and 2) a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the sponsor. (It appears that these “qualitative analyses” – or, put another way, “subjective judgment calls” – by the Department is what has been giving rise to the “complaints” that are referred to in the MIA newsletter). 

In its submissions to the Federal Court, Cargo First contended that, in affirming the disapproval of the nomination, the AAT had committed jurisdictional error. It was Cargo First’s case that the Tribunal had “asked itself the wrong question” by inquiring into whether the company had a genuine need for both a sales and marketing manager and a general manager.  Cargo First submitted that the Tribunal should have confined its inquiry to whether the tasks of the nominated position included a significant majority of the tasks described in ANZSCO for the occupation. 

In the end, the Federal Court concluded that the Tribunal had not in fact “asked itself the wrong question”, but that what it had done was to address the “correct question”, of whether the position associated with the nominated occupation was “genuine”.  

The Tribunal carried out this task by examining the job description in the employment contract for the nominated position, can comparing the contract to the tasks that were in fact being undertaken.  

In making this “qualitative assessment”, the Tribunal concluded that the duties associated with the nominated position were actually those of a “manager” and were not those of a “sales and marketingManager”.  The Tribunal considered that the duties of the position, as described in the evidence, including “hiring and firing, payroll, rostering, training, dispute management, ordering” and deciding “how much and what to bake”.   Although the Tribunal had accepted that the position had also involved duties relating to sales and marketing, that fact alone was not enough to establish that the position of sales and marketing manager was a “genuine” one. 

In short, the Tribunal found that the responsibilities of the position were really that of a manager, and not a sales and marketing manager, and that therefore the position that had been nominated was not truly “genuine”. 

Okay, what do all of you think? 

Is the basic analytical framework for assessing the genuineness of nominated positions that was adopted by the Federal Court correct? 

Is there too much scope for “subjective judgment” on the part of reviewing officers and the Tribunal? 

And lastly, did the Federal Court “get this one right?” 

(Chris, this was your case, so the comments section is open to you to tell us the “inside story”!!)

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837