AOFENG INTERNATIONAL PTY LTD (Migration)

This matter concerned an appeal by AOFENG INTERNATIONAL PTY LTD against a decision to refuse the nomination of a retail buyer. The dispute arose because the Tribunal was not satisfied that the nominated position met the relevant criteria under the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the nominated occupation of Retail Buyer, with ANZSCO code 639211, corresponded to an occupation specified in the relevant instrument (IMMI 17/060) and whether the occupation was applicable to the nominee, considering the conditions attached to it. Additionally, the Tribunal had to determine if the nominated position was genuine, as required by regulation 2.72(10)(f).

The Tribunal reasoned that the nominated occupation of Retail Buyer was subject to a caveat (Condition 11) which rendered it inapplicable to a position based in a front-line retailing setting or one that predominantly involved regular direct client transactional interaction. Given the applicant's business was a small retail store selling novelty products, furniture, accessories, and lifestyle items, and its organisational chart indicated limited staff, the Tribunal was not satisfied that the nominee would not be engaged in front-line retail activities. Furthermore, the Tribunal found that the role of a Retail Buyer, a Skill Level 3 occupation, is typically associated with larger businesses, and in a small retail setting, such tasks would ordinarily be performed by the owner or manager. Consequently, the Tribunal concluded that the nominated position was not genuine and that the requirements of regulation 2.72(10)(aa) and (f) were not met.

The Tribunal affirmed the decision to refuse the nomination.