1504100 (Migration)

This matter concerned an appeal to the Tribunal regarding the refusal of a business nomination application. The applicant sought to nominate a position for a visa applicant, which the Department had initially refused. The core of the dispute revolved around the correct classification of the nominated role and whether it met the requirements of the Migration Regulations 1994.

The Tribunal was required to determine whether the nominated position of "retail manager" was correctly classified as such, or if it was more appropriately categorised as a "retail supervisor" with a lower skill level. This classification was critical as it related to the requirements of regulation 5.19(4)(h)(ii)(D) of the Migration Regulations 1994, which specifies a minimum skill level for certain nominated positions. The Tribunal also had to consider whether the applicant met all other relevant requirements of regulation 5.19(4), not solely the point of contention raised by the Department.

The Tribunal affirmed the Department's decision to refuse the nomination. The delegate's view that the nominated position was more accurately classified as a retail supervisor, thus not meeting the required skill level of ANZSCO skill level 1, 2, or 3, was accepted. The applicant's own evidence indicated he managed the business himself until October 2014, after which he handed over operations to the visa applicant, suggesting a supervisory rather than managerial role for the nominated position. The Tribunal concluded that the nomination could not be approved.