The importance of using the most recent and up to date version of resources and materials can never be understated. The use of outdated versions of legislative materials or resources can lead to a finding of jurisdictional error. In November 2018, No Borders Migration successfully appealed a decision by the Federal Circuit Court to dismiss an application for judicial review of a decision by the Administrative Appeals Tribunal.
In October 2016, the Administrative Appeals Tribunal affirmed a decision of the Department of Immigration and Border Protection (now the Department of Home Affairs) to refuse a nomination of a Business Development Manager for a cleaning company based in Brisbane. The tribunal made a finding on the materials before it that the nominated position was not a genuine position, and did not accept that there was a genuine need by the nominating employer for a full time Business Development Manager within the organization. On that basis, the tribunal affirmed the decision to refuse the nomination.
In reaching its findings, the Tribunal made reference to the Australia and New Zealand Standard Classification of Occupations, also known as the ANZSCO. The ANZSCO is a classification of occupations and jobs in Australia and New Zealand. ANZSCO defines these occupations in accordance with their attributes, and groups them on the basis of their similarity into successively broader categories. ANZSCO also provides a description of the tasks involved with each occupation, and also prescribes a level of skill that would be commensurate with the occupation.
The occupation of Business Development Manager is a specialization of the broader occupation of a “Sales and Marketing Manager”. In other words, a Business Development Manager can be seen as a type of Sales and Marketing Manager. Thus, the Tribunal did not accept that there was a genuine need for a nominee to carry out the duties and tasks of a Business Development Manager as prescribed under the ANZSCO.
It was discovered in the decision record of the Tribunal that in its reasoning for affirming the refusal to approve the nomination, the Tribunal had made reference to an outdated and superseded version of the ANZSCO. It was found that the outdated version prescribed different descriptions of the tasks of a Business Development Manager than the most recent and correct version. The most obvious difference in the versions was that the correct version of the ANZSCO did not make reference to consultation with other managers, where the outdated version did.
At the Federal Circuit Court, the Judge found that the Tribunal’s reliance on the incorrect version of the ANZSCO did not result in jurisdictional error. The reasoning behind the Federal Circuit Court’s decision was that although it accepted that there was a difference in the versions, the Tribunal was not led into error as the ANZSCO was merely a guide, and in addition, the qualitative analysis of the Tribunal and skill level of the nominated duties, and thus no jurisdictional error was found.
Upon appeal to the Federal Court of Australia, it was found that the use of the incorrect version of the ANZSCO by the Tribunal was indeed an error of law, and that the appeal should be allowed. The Federal Court of Australia found that the Tribunal’s reliance on the outdated version of the ANZSCO position description did fatally infect its decision because, in so relying, the Tribunal misapplied reg 2.72 (10)(f) of the Migration Regulations 1994. In other words, the Federal Court of Australia found that the Tribunal’s decision was informed by incorrect ANZSCO criteria and that there can be no other conclusion other than that this process resulted in an error which went to the jurisdiction of the Tribunal.
The finding of jurisdictional error now means that decision will go back to the Tribunal for reconsideration of the matter.
Cases such as these are complex and rely on a deep understanding of Migration Law. No Borders Migration Advocates are able to provide assistance and advice on matters such as these.
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