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The Employer operates a small delivery business, contracting to larger suppliers and distributors operating in the Sydney metropolitan area. A large component of the Employer’s business was home delivery of fresh produce and small store goods; however, the Employer also had larger vehicles capable of transporting larger freight items to businesses within the Sydney area. The Employer lodged a Subclass 457 Nomination Application, with the Nominated Position being that of a Transport Company Manager.
The Nomination Application was refused as the Case Officer did not believe there was a genuine need for the for the Nominated Position. A review of Department records showed that the Employer already had an individual working in the same position, who had previously been successfully sponsored for a 457 Visa. The Nominator had failed to disclose this in their new Nomination Application, and the organisation chart provided did not show the position being filled by the current 457 Visa Holder. In addition to this, the Employer has claimed that the position had been recently created within the organisation, and that no one in the organisation filled such a role. Upon these finding the Nomination was refused, as the Department concluded that the relative size of the Employer’s Business did not justify the need for a second Transport Company Manager; and the Case Officer concluded that the Employer had mislead the Department by making submissions that no individual currently worked in the role. Following the refusal of the Nomination, the visa was also refused.
The Employer and prospective Employee engaged the services of Parish Patience Bitel Immigration Lawyers, who assumed carriage of the matter from the previous Migration Agent. An appeal was lodged to the Administrative Appeals Tribunal for the refusal of both the Nomination and the Visa Application, and both these Applications were listed together in a joint session before Tribunal Member Sanderson.
Prior to the Hearing, extensive documents and submissions were provided to the Tribunal detailing the genuine need for the Nominated Position. This included evidence of the Employer’s fleet size, delivery run sheets, the financial situation of the Employer’s Business, and a positive skills assessment of the Employee in the Nominated Position; based upon his work with the Employer. The key argument made was that the Employer operated both day and night; and that this created a genuine need for two Transport Company Managers to monitor operations. It was noted that the Case Officer did not address the Employer’s failure to disclose the position being filled by another 457 Visa Holder as a reason for the refusal; and this omission could potentially allow an argument that such matters are irrelevant and should not be considered upon review as they were not recorded as forming part of the final conclusions of the Case Officer.
At the Hearing, the Member expressed further concerns in relation to the business. The Member noted that the business operated from a residential home, owned by the Director; and that many drivers would simply take their trucks or vans home with them at the end of the day to be parked overnight at their home. The Member expressed concern at the Employer’s motivations behind failing to disclose that the Nominated Position was already being filled by another 457 Visa holder, and that the organisation chart was deliberately misleading.
Despite the Member’s concerns, he found the Employer and the Employee to both present consistent evidence in relation to the business operations; and accepted that the day and night operations created a genuine need for the role. The attending legal representative made submissions directing the Member back to the core issue of the refusal not being the misleading behaviour of the Employer, but the finding that there was not a genuine need for the Nominated Position due to the incorrect assumption that the Employer was a small business with limited operations. It was submitted that any consideration outside of the core issue was an irrelevant consideration; and the sole consideration was whether the Nomination met the genuine need criteria.
Following further consideration of the matter, the Member released their decision that the Department had erred in their decision. Rather than send the matter back to the Department for reconsideration, the Member made a decision to approve the Nomination without further consideration from the Department; a very rare outcome in these types of matters. This is an especially significant outcome, given the credibility issues raised during the proceedings; and the Member concluded it was best to approve the Nomination without further Departmental scrutiny.
Subsequently, the Member remitted the Visa Application to the Department for further consideration, based on the approved Nomination. This case highlights the importance of being honest with the Department at all times during the Application Process; and the importance of highlighting subjective business operational needs when addressing the genuine need criteria of an Employer Sponsored Nomination Application. Lastly, it is important to review the reasoning of a Case Officer in a refusal decision record; as failure to include key issues as forming a reason for a decision can limit the scope of what can be considered by the Member during the Hearing.
Both the Employer and the Employee were overjoyed at the positive outcome, and eagerly await the finalisation of the Employee’s Subclass 457 Visa by the Department.
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