MIGRATION - approval of nominated position (employer nomination) - Short-term stream - occupation of Technical Sales Representative - genuine occupation - Labour Market Testing - comparison of the position descriptions - organizational chart - overriding business need for the position - position skill set aligns with business requirements - nominee possesses skill set - decision under review remitted

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Migration Act 1958 (Cth), ss 140GB, 140GBA

Migration Regulations 1994 (Cth), rr 2.72, 2.73

Austwide Laser Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1915

Cargo First Pty Ltd v MIBP [2016] FCA 30

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 November 2023 to refuse to approve the applicant's nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
2. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings that were not finalized before 14 October 2024 are to be continued and finalized by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
3. The applicant applied for approval on 4 September 2023. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream.

Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.

1. The position in question was the occupation described as Technical Sales Representatives Nec - 225499 in the Australian and New Zealand Classification of Occupations (ANZSCO). Occupations in this group include Sales Representative (Educational Products and Services). The delegate decided not to approve the nomination on the basis that the applicant did not satisfy the criterion in paragraph 2.72(10)(a) of the Regulations because they were not satisfied that the position associated with the nominated position is genuine.
2. The applicant is a registered Imam on the New South Wales Registered Imams List. He is the founder and managing director of the Al-Hafiz Quranic Centre (Centre) which is where the nominated Technical Sales Representative position would be located.
3. The Centre is a registered educational institution, located in Greenacre, NSW, which offers in person courses in Qu'ranic memorization, recitation (Tajweed) and Islamic studies for children through to adults. The Centre provides services to more than 500 students a week, employing a team of qualified teachers and administrators. Its focus is to provide services to schools and community organisations rather than marketing its courses to individual students.
4. The background to the nomination application is described by the applicant in the following terms:

"The role of technical sales representative... for the Al-Hafiz Quranic Centre remains vacant because the business has been unable to identify an available Australian with the detailed technical knowledge of Quranic and Islamic religious texts, sales skills, an ability to communicate with the Australian Muslim community and who is willing to take the role." (Applicant's First Submission, [1])

1. The reasons given by the delegate for not approving the nomination were:

(a) The delegate was not satisfied that the nominated position is a Technical Sales Representative in accordance with the ANZSCO description (225499) of this occupation.

(b) Specifically, he was not satisfied that the majority of the tasks which the nominee is likely to perform align substantially with the tasks listed in the ANZSCO description. A number of tasks listed in the job description for the nominated position were identified as not appearing the ANZSCO description.

(c) The organizational chart provided by the applicant at the time of the nomination application did not identify positions corresponding to the "sales team." and

(d) The delegate had a concern that some of the duties identified for the administrative assistant "such as preparing sales report, managing customer inquiries and coordinating appointments align with the ANZSCO duties of a Technical Sales Representative."

1. For completeness, the Tribunal notes that the nominee for the position, Abdullah Hafiz Mohammad Ismail, is the brother of the applicant. This aspect of the factual matrix is further dealt with below.
2. The applicant appeared before the Tribunal on 1 August 2025 to give evidence and present arguments.
3. The applicant was represented by Emma Espino (Ms Espino), employed solicitor, Ray Turner Immigration Lawyers, in relation to the review.
4. For the following reasons, the Tribunal has decided to set aside the decision under review and remit the matter for reconsideration with the order that the nomination meets the criterion in sub regulation 2.72(10)(a).

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The labour market testing requirements in s 140GBA must be met. The Tribunal notes that evidence was submitted to demonstrate and satisfy it the labour market testing requirements have been met. Labour Market Testing was carried out by the applicant between 5 June 2023 and 23 July 2023, and more recently between 25 June and 23 July 2025. (Applicant's First Submission, [6] - [7])
2. The Tribunal has read and carefully considered all the evidence previously presented to the delegate and the Department.
3. The Tribunal in conjunction with the evidence previously submitted to the delegate has carefully read and considered all the evidence presented to it, prior to making this decision. The Tribunal has had more information and evidence available to it than was before the delegate when the nomination application was rejected.
4. The applicant provided initial written submissions dated 18 June 2025 (Applicant's First Submissions) with supporting documents and further written submission dated 23 July 2025 (Applicant's Second Submissions) with supporting documents. The documentation which accompanied the Submissions, and which was before the Tribunal in evidence, included the following:

(c) Labour Market Testing documentation (summarizing domestic recruitment activities).

(d) Employment contract between the Al-Hafiz Quranic Centre and the nominee dated 1 August 2023.

(e) Supplementary statement of the applicant dated 15 July 2025.

(f) Correspondence from Ahmad Nabi, the tax agent and accountant of the Al-Hafiz Quranic Centre dated 23 July 2025. and

(g) Financial information including income tax returns for the applicant and Financial Reports for Yasir Hafiz Mohammad Ismail trading/as Al Hafiz Quranic Centre.

1. In addition, the Tribunal received evidence from the applicant, covering the following points:

(a) The Technical Sales Representative position is an important and genuine role which requires the person in the position to have a very deep knowledge of the Qu'ran, to be a fluent Arabic speaker and to also have the necessary social media and internet knowledge and skills to communicate effectively with young people.

(b) The unique combination of skills required for the role has made it very difficult to fill the role. In the most recent recruitment campaign in 2025, there were about 35 applicants. None of them had all the required skills for the position, as the nominee does.

(c) The Centre has been growing rapidly in recent years, and it has ceased to be possible for the applicant himself to manage all aspects of the Centre and to pursue the growth agenda for the Centre without the nominated full-time position being filled.

(d) The applicant referred to the letter dated 23 July 2025, from Mr Nabi, Principal Accountant at Nextzen Taxation Pty Ltd, the external accountants for the Centre, which expressed the following opinion: "This letter is to confirm that based on our review of the most recent financial statements of [the Centre], and considering the Centre's current growth trajectory, strategic expansion initiatives, and historical financial data, we project a 30% increase in annual revenue for the financial year ending 30 June 2026, contingent upon the recruitment of a qualified Technical Sales Representative and the launch of the planned educational and digital initiatives." and

(e) The nominee understands the business model and the vision for the Centre, he has a very deep knowledge of the Qu'ran and, having been born in Saudi Arabia, has the complete command of the Arabic language needed for the role. In addition, the applicant has studied computer science and can bring that expertise into the various social media avenues of communication with the Centre's student body.

Regulation 2.72(10)(a) - Position must be genuine and full-time

1. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal's approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
2. The applicant has identified the following skills as being needed by a candidate to fill the Technical Sales Representative position:

(b) Understanding of the principles and purposes behind Islamic education.

(c) Ability to communicate complex religious text and requirements.

(d) Experience in content management of social media.

(e) Sales skills of communication and influence of Muslim communities and schools.

(f) Deep understanding of Traweeh and Tahajjud Prayers." (Applicant's Second Submissions, [24]).

1. With these identified skills in mind, the Tribunal has undertaken a comparison of the position description for the role against the ANZSCO role description for Technical Sales Representatives - 225499. The Tribunal is persuaded that there is substantial alignment between the role description and the ANZSCO description for the majority of the tasks identified in the evidence as tasks the nominee is likely to perform.
2. As previously mentioned, the applicant's focus is to provide services to schools and community organizations and in effect the role involves selling the concept and vision of the Centre to those target customers and engaging in all the ancillary activities that entails. The Tribunal is satisfied that a significant majority of the tasks to be undertaken in the nominated position meet the ANZSCO role description for Technical Sales Representatives Nec - 225499.
3. The delegate did not have the benefit of an organizational chart which identified where the Technical Sales Representative would sit in the organization and what the "sales team" would look like. The organizational chart in evidence in the Tribunal shows the Technical Sales Representative role as a direct report to the applicant (in his capacity as Business Manager). The Business Manager oversees the commercial activity of the business as distinct from the administration and educational arms of the Centre's business.
4. Currently supporting the nominated role is a Marketing & Customer Support role (presently filled by an Australian citizen). If the Technical Sales Representative role is filled, there would be two further positions which would also be filled. These positions are a proposed Sales & Marketing Assistant (reporting directly to the Technical Sales Representative) and a proposed Online Program Coordinator role which would support the internet/social media aspects of the nominee's position. The ability of the applicant to grow the business of the Centre and add these additional employees is contingent upon being able to fill the Technical Sales Representative position.
5. The applicant explained to the Tribunal that the existing Administrative Assistant role is for the purpose of supporting him in his General Manager capacity rather than to support the Technical Sales Representative, who would have his own Sales & Marketing Assistant. There does not appear to be a material functional overlap in the duties of the Administrative Assistant role and the duties of the proposed Technical Sales Representative position.
6. The Tribunal is satisfied that the delegate's concerns are addressed and have been overcome on the evidence before the Tribunal.
7. Turning to the fact that the nominee is the brother of the applicant, the question for the Tribunal is whether the nomination has been lodged in the true interests of the business, or rather the nominated position created for the purpose of procuring a migration outcome for the nominee.
8. In Austwide Laser Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1915 (Austwide Laser), the Federal Circuit Court considered the question of whether a nominated position had been created for the main purpose of procuring a migration outcome for the applicant's sister. Judge Egan upheld the Tribunal's decision that the position in question was not a genuine position.
9. Austwide Laser can be distinguished from the present case on its facts, which included that the business was newly registered, the nominee lacked experience in the role and the business activities were altered by the applicant to fit with the nominee's skills. None of those facts are present in this case. The Centre was registered in 2013 and is an established business and is now entering a growth phase. The skill set identified for the nominated position aligns with the business requirements of the Centre. The nominee possesses that skill set.
10. It follows that I do not accept the proposition that the nominated role has been created for the main purpose of procuring a migration outcome for the nominee. There is an overriding business need for the position which exists independently of the fact that the nominee happens to be a sibling of the applicant. Filling the position with the nominee may have a particular migration outcome for the nominee, but I am satisfied that that migration outcome is not the purpose for which the nominated role has been created.
11. For these reasons the requirements of reg 2.72(10) are met.

1. The Tribunal sets aside the decision not to approve the nomination and remits the matter for reconsideration in accordance with the order that the nomination must be taken to have met the following criterion for approval under s 140GB(2) of the Act: Sub regulation 2.72(10)(a)

Date of hearing: 1 August 2025

Representative for the Applicant: Ms Emma Hungerford Espino

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

(1) This regulation applies in relation to a person who:

(a) is any of the following:

(i) a standard business sponsor;

(ii) a person who has applied to be a standard business sponsor;

(iii) ...

(iv) ...

(b) under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;

(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

(2) For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

(3) The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

(a) there is no adverse information known to Immigration about the person or a person associated with the person; or

(b) it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

(a) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short -term stream or Medium-term stream - the person is a standard business sponsor; or

(5A) The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

(a) a Subclass 457 (Temporary Work (Skilled)) visa; or

(b) a Subclass 482 (Temporary Skill Shortage) visa;

the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

(7) However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

(a) the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short- term stream or Medium-term stream - the instrument made under subregulation (9) in force at the time the nomination is made; or

(ii) ...; and

(b) the occupation applies to the nominee in accordance with the instrument or work agreement.

(9) The Minister may, by legislative instrument, specify occupations and, for each occupation:

(a) whether the occupation is:

(i) a short term skilled occupation; or

(ii) a medium and long term strategic skills occupation; and

(b) either:

(i) the 6-digit ANZSCO code for the occupation; or

(ii) if there is no 6-digit ANZSCO code for the occupation - a 6-digit code for the occupation; and

(c) if there is no 6-digit ANZSCO code for the occupation - tasks, qualifications and experience for the occupation; and

(d) any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

(i) the person who nominated the occupation;

(ii) the nominee;

(iii) the occupation;

(iv) the position in which the nominee is to work;

(v) the circumstances in which the occupation is undertaken;

(vi) the circumstances in which the nominee is to be employed in the position.

(10) The Minister is satisfied that the position associated with the occupation is:

(10A) However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short -term stream or Medium-term stream; and

(b) the person is not an overseas business sponsor; and

(c) the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

(d) the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

(e) the person will give the Minister a copy of the contract signed by the employer and the nominee.

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short -term stream or Medium-term stream; and

(b) the person is an overseas business sponsor; and

(c) the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

(d) the nominee will be engaged only as an employee under a written contract of employment by the person; and

(e) the person will give the Minister a copy of the contract signed by the person and the nominee.

(13) The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c)

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short -term stream or Medium-term stream; and

(b) the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

(c) the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

the person has provided evidence to the Minister that the nominee satisfies:

(d) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short -term stream - any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nom inee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

(e) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium - term stream - any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium -term stream.

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short -term stream or Medium-term stream; and

(b) the Minister is not satisfied that the nominee's annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

(c) the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

(d) the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

(e) the nominee's annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

(f) the nominee's annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of para graph (d); and

(g) either:

(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

(ii) it is reasonable to disregard any such information.

(a) the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

(ii) it is reasonable in the circumstances to do so; and

(aa) the Minister may disregard the criterion in paragraph (15)(e) if:

(i) under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

(ii) the Minister is satisfied that it is reasonable in the circumstances to do so; and

(b) the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

(17) The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

(18) If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short -term stream or Medium-term stream, the Minister is satisfied that:

(a) either:

(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(ii) it is reasonable to disregard any such information; and

(b) if the person is lawfully operating a business in Australia - the person has not engaged in discriminatory recruitment practices.