Australian Immigration Daily News

What makes a nomination of an occupation for a 457 visa “genuine”, such that the nomination satisfies subclause 2.72(10) of the Migration Regulations and the nomination can be approved?

Does it matter whether the duties of the occupation will be performed on a full-time basis by the visa holder?

These questions were addressed in a decision of the Federal Circuit Court that was handed down earlier this week, Nguyen and Nguyen trading as Saigon Butchery v Minister for Immigration & Anor (2017) FCCA 2155 (18 October 2017).

Here’s the story:

As in so many other cases where the Department and the Tribunal have questioned the “genuineness” of the proposed occupation, the nomination that was at issue here was for the occupation of a “Sales and Marketing Manager”.

As the name of this case suggests, the sponsoring business that proposed the nomination was engaged in the wholesale and retail sale of meat. The employment contract that was submitted in support of the nomination recited that the duties of the proposed sales and marketing manager would include “Negotiating and signing contracts with new commercial retailers for the wholesale supply of met”.

In the first instance, the nomination was refused by a delegate of the Minister on the basis that the delegate was not satisfied that the size of the business was one that required a full time sales and marketing manager.

When the case came before the Administrative Appeals Tribunal, the evidence advanced by the sponsoring employer indicated that the duties that were envisaged for the proposed sales and marketing position would involve responsibility for dealing with suppliers and negotiating purchase prices for meats. The evidence was further to the effect that the sales and marketing manager would spend only about 30 % of her time negotiating with suppliers.

On this record, the Tribunal found that since the proposed employee would be spending a substantial proportion of her time carrying out duties that were not related to sales and marketing manager, it did not accept that a full time sales and marketing manager position was necessary to the operation of the business. On that basis, the Tribunal concluded that the nominated occupation was not genuine.

Was this decision by the Tribunal incorrect and “infected by jurisdictional error”?

It was argued on behalf of the sponsoring business that the Tribunal had failed to carry out the task of determining whether the proposed occupation was “real and true” simply by finding that since the duties of the proposed employee would involve sales and marketing activities only 30 % of the time that it was not “genuine”.

In the view of Judge Driver of the Federal Circuit Court, there was nothing wrong with this approach.

Judge Driver referred to the decision of the Federal Circuit Court in the case of Cargo First (which was upheld on appeal to the Federal Court) where it was held by Judge Smith that the task of determining whether a nominated occupation is genuine involves an enquiry not only into the question of whether the position actually exists, but also into the question of whether the position is what it purports to be.  Under the Cargo First decision, this exercise involves a “qualitative analysis of the position and a comparison of that with the occupation which had been nominated by the proposed sponsor”.

In Nguyen, Judge Driver held that there was “nothing impermissible” in the Tribunal having regard to the nature of the tasks that were proposed to be performed by the nominee for the proposed occupation, and the proportion of time that the nominee would spend on particular tasks encompassed within the ANZSCO description of the occupation.

So, in this case, the evidence that the proposed nominee would only spend about 1/3 of her time on tasks that were associated with the nominated occupation of sales and  marketing manager was enough to be fatal to the application for approval of the nomination.

The outcome of this case quite naturally raises the question of “what percentage of a prospective employee’s time needs to be spent carrying out the tasks of the nominated occupation?”.  Nguyen doesn’t give us a definitive answer to the question, other than to suggest that perhaps “30%” is not enough.  So the issue may need to be tested further. But one may hazard to guess that perhaps a nomination would be considered genuine if the nominee is proposed to spend the great majority of her/his time carrying out the tasks of the nominated occupation, and that the less time that the person is proposed to spend acting in the proposed occupation, the greater the risk of refusal.

Yes, when it comes to qualitative analyses of issues like “genuineness”, there may not be a way to escape subjectivity on the part of reviewing officers of the Department or the Tribunal. The only way to be absolutely sure is by applying the famous “duck test” used by the US Supreme Court to identify pornography: “If it walks like a duck, quacks like a duck, and swims like a duck…it is a duck!”