Tribunal decision
11 The Tribunal noted that the relevant visa stream against which the applicant had made claims was that contained in cl 457.223(4), which applied to sponsorship for employment in an occupation by a standard business operator. In particular, the Tribunal considered the issues in the present case to be whether the applicant met the requirements of cl 457.223(4)(a) and (d).
12 The Tribunal found that the applicant met the requirement in cl 457.223(4)(a), as at the time of the Tribunal's decision there was an approved nomination of an occupation in relation to the applicant by a standard business sponsor and the approval of the nomination had not ceased. This finding was made on the basis of evidence before the Tribunal that on 4 September 2014, a delegate of the Minister approved a nomination in relation to the applicant by a security company named Zenith Combined Services Pty Ltd for the occupation of Program or Project Administrator (Australian and New Zealand Standard Classification of Occupation (ANZSCO) 511112).
13 The Tribunal proceeded to consider cl 457.223(4)(d), which requires the decision-maker to be satisfied that the applicant's intention to perform the occupation is genuine and that the position associated with the nominated occupation is genuine.
14 The Tribunal took into account the applicant's oral evidence that he had a diploma in hospitality, that he was working as a security guard at the sponsor company, that the sponsor was looking for a person to fill the position of Program or Project Administrator, and that the applicant had told the sponsor that he could do the job. The applicant claimed that the reason he was not already doing this job was that the employer wanted someone permanent. He further claimed that his diploma was relevant to his nominated position because he studied Hospitality Management, dealing with hotels, which was the same as managing a security company. The applicant did not know whether the employer had advertised the vacancy in question.
15 The Tribunal also took into account the oral evidence of Mr Ghamraoui, the managing director of the sponsor company. It noted his evidence that the applicant had not been working in the nominated position because Mr Ghamraoui did not want to spend his time and resources training someone unless that person gave him some assurance that they wanted to be in that position at least in the short to medium term. Mr Ghamraoui claimed that the company's business had expanded and that he needed someone to fill the nominated position. However, he confirmed that he did not advertise the position locally and had made no attempts to find an Australian citizen or permanent resident for the position.
16 The Tribunal allowed the applicant until 24 September 2014 to provide further evidence. It subsequently received documentary evidence suggesting that the sponsor's business had expanded over the past year.
17 The Tribunal noted that in approving the nomination for the position on 4 September 2014, the Minister's delegate was clearly satisfied that r 2.72(10)(f) of the Regulations, which requires that the position associated with the nominated occupation is genuine, was satisfied. However, the Tribunal considered that it was not bound by the delegate's decision on the nomination when considering a visa application against the Subclass 457 criteria and that the requirement in cl 457.223(4)(d)(ii) that the nominated position is genuine must be separately considered. It noted that if the legislature had intended that the criterion in cl 457.223(4)(d)(ii) of Schedule 2 should not be considered separately from r 2.72(10)(f), it could have removed the former criterion from Schedule 2.
18 The Tribunal accepted that the job description provided to the applicant by the sponsor was in line with the duties set out in ANZSCO for the nominated position. The Tribunal also accepted that the applicant had a Diploma from an Australian education provider. However, the Tribunal set out several concerns which it had as to whether the position associated with the nominated occupation was genuine.
19 The Tribunal noted that the applicant had never worked in the nominated position, despite the nomination being first approved on 25 June 2013 and approved again on 4 September 2014. The Tribunal also noted Mr Ghamraoui's evidence that he was the only person working in the office, that the business was expanding and that he worked long hours causing a decline in his health. In those circumstances, the Tribunal found it surprising that the sponsor did not employ the applicant in the position that the sponsor claimed was necessary to the business, given that the applicant worked full time for the sponsor as a security guard and had an approved nomination to work in the nominated role. The Tribunal observed that the sponsor appeared to have made little effort to fill the position of Program/Project Administrator and that despite the claimed suitability of the applicant, the sponsor had not employed him in that position. Based on that evidence, the Tribunal was not satisfied that the sponsor had a genuine need for a full-time Program or Project Administrator.
20 The Tribunal considered the sponsor's evidence that the reason the applicant was not already employed in the nominated role was that the sponsor was unwilling to expend considerable resources without certainty on the applicant's visa. However, it rejected that explanation given that the applicant claimed to be qualified to fill the position, he already worked for the sponsor and the sponsor claimed that the position was needed. The Tribunal therefore found that the applicant did not satisfy the requirement in cl 457.223(4)(d)(ii), and accordingly, that the requirements of cl 457.223(4)(d) were not.