Australian Immigration Daily News

Do you work on Temporary Skills Shortage visas?

If so, are you being driven over the brink by the Department's, or the Tribunal's, interpretations of the so-called "genuineness test" under regulation 2.72(10)?

If that is the case, you should be aware of an important decision that came out of the Federal Circuit Court less than a month ago: it is called Michellechen Pty Ltd v Minister for Immigration & Anor (2019) FCCA 3355 (22 November 2019).

You may recall that there is some significant case authority - primarily the decision in Cargo First - which tells us that in making an assessment of whether a nominated position is "genuine", it is necessary for the decision-maker to conduct a "qualitative analysis" to assess whether the position actually exists, and whether it is "what it purports to be" - in other words, that the tasks of the nominated position correspond sufficiently with the tasks of the occupation as described in the Australia and New Zealand Standard Classification of Occupations.

The gift that the Michellechen case gives us is that it provides a tool to attack questionable decisions of the Department or the Tribunal that do not include a sufficient analysis and comparison of the tasks of the nominated position with the occupation description in ANZSCO.

In Michellechen, it was essentially held that it is not good enough for the Tribunal simply identify the nominated occupation, and to make only a "passing reference" to the ANZSCO description.

Rather, it was held in Michellechen that what is needed is a careful, comprehensive and step-by-step comparison of the tasks of the nominated occupation with the description of the occupation in ANZSCO.

Where the Tribunal fails to conduct such a careful examination, it may well be found that it has failed to engage in an "active intellectual process" in answering the question of whether the nominated position is "genuine".

So, this tells us that it really pays to read the AAT Decision Record very closely for gaps in the Tribunal's analysis: where the analysis was not thorough enough, there may well be an argument that "jurisdictional error" occurred, and a tool to persuade the Federal Circuit Court to send the case back to the Tribunal for re-determination.

If you want to find out more about this decision - check out the article on The Migration Messenger (you'll need to subscribe!)