1513702 (Migration)

The Administrative Appeals Tribunal considered an application by Ms. Yeh, who sought to have a decision to refuse her nomination as an Importer, Exporter and Wholesaler affirmed. The dispute centred on whether Ms. Yeh met the criteria for the approval of this nomination, which was a prerequisite for a Subclass 457 visa. The Tribunal was required to determine if the nominated position was genuine and if Ms. Yeh fulfilled the requirements of the role.

The primary legal issue before the Tribunal was whether the nominated position of Importer, Exporter and Wholesaler for the business 'Uggs & Kisses' was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994. This involved assessing whether Ms. Yeh's actual duties and the operational reality of the business aligned with the responsibilities outlined in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for this role. The Tribunal also had to consider the evidence presented, including business activity statements, invoices, and supplier references, to ascertain the extent of Ms. Yeh's involvement and the presence of other staff.

The Tribunal reasoned that the evidence did not sufficiently demonstrate that the nominated position was genuine. While Ms. Yeh was identified as the nominee and her role involved importing and exporting goods for the business, the Tribunal noted that the declared wages in the Business Activity Statements appeared to cover only Ms. Yeh's salary. This suggested that Ms. Yeh was the sole employee working in the store, which cast doubt on the genuineness of a position described as an Importer, Exporter and Wholesaler, a role typically involving broader management and coordination functions. The Tribunal concluded that the applicant had not met the applicable criteria for the nomination to be approved.

The Tribunal affirmed the decision under review to refuse the nomination.