1509308 (Migration)

The Administrative Appeals Tribunal considered a decision by the Department of Immigration and Border Protection to refuse a Temporary Business Entry (Class UC) visa to the applicant, and by extension, to the second applicant who relied on their status as a member of the family unit. The Department had initially approved the nomination for the occupation of Retail Buyer but subsequently refused the visa, being unsatisfied that the nominated position was genuine, thus failing to meet subclause 457.223(4)(d)(ii) of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was whether the position associated with the nominated occupation of Retail Buyer was genuine. The delegate's concerns were based on the applicant working at a single retail location, the absence of overall store management disclosure, and the belief that a business of the sponsoring employer's size would have its buying functions handled by the store manager, with no evidence of a separate Retail Buyer role. The Tribunal was required to assess the size, scope, and structure of the sponsoring business in light of the Australian and New Zealand Standard Classification of Occupations (ANZSCO) description for Retail Buyers.

In its reasoning, the Tribunal acknowledged the delegate's concerns and reviewed documentary evidence regarding the business's structure, which indicated a single location with an owner and three positions between the owner and sales assistants, including the proposed Retail Buyer role, an Assistant Store Manager, and a Sales and Marketing Manager. Despite the business's substantial financial turnover, the Tribunal found that the provided organisational chart and the ANZSCO description for Retail Buyers, which outlines tasks such as monitoring sales data, negotiating with suppliers, and anticipating consumer trends, did not sufficiently demonstrate a genuine separation of the Retail Buyer role from that of a store manager within the context of the presented business structure. The Tribunal concluded that the evidence did not satisfy the genuineness requirement for the nominated position.

Consequently, the Tribunal affirmed the Department's decision not to grant the Temporary Business Entry (Class UC) visas to either applicant.