“Genuineness” of the position associated with a nominated occupation Important Federal Circuit Court Decision.

A sponsoring company that lodged the nomination application with the job/title of the nominated position as a “Restaurant Manager” and the corresponding occupation in the Australia and New Zealand Standard Classification of Occupations was “Café or Restaurant Manager”.

The Department refused the nomination application saying it was not satisfied that the position was genuine, as required by Regulation 2.72(10)(f) of the Migration Regulations. The AAT upheld the refusal of the nomination.

The matter was appealed to the Federal Circuit Court and Judge Kemp found that the Tribunal’s analysis in this case was affected by jurisdictional error.

He concluded that the Tribunal had fallen into error by failing to evaluate the duties of the position as put forward by the applicant against the ANZSCO description of the occupation. Instead, what had occurred was that the Tribunal made findings that the duties that were being performed by the nominee were those of a “managing director” (which was not the occupation that was identified in the nomination application) and that the duties undertaken by the nominee were not those that were performed in the business by a person employed as a restaurant manager.

The Court found that the AAT’s analysis was limited to stating simply that the nominated occupation was that of a café or restaurant manager, and noting the relevant ANZSCO code for this occupation.

Held, that this plainly cursory and shallow analysis by the Tribunal did not “go anywhere near as far enough to properly consider the matter” and referring to other decisions of the Full Court Judge Kemp stated that in carrying out a review, the Tribunal is obligated to give the issues “genuine, proper and realistic” consideration, and that it must engage in an “active intellectual process”.

So if you or anyone you know has had a visa or the associated Nomination refused on “genuineness” grounds, that is, the belief that the POSITION is NOT Genuine make an appointment with a Master Migration Lawyer.

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Call 03 9614 0218 or email info@arlaw.com.au to make an initial 30 Minute consultation at our Melbourne office. (conditions apply)

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Note: this update, or any previous updates on this page, do not constitute legal advice and should not be relied upon as such. Please call our office to seek professional advice before acting or relying on any of the content on this page

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