AUS FOODS UNIT TRUST (Migration)

This matter concerned an application by AUS FOODS UNIT TRUST for approval of a nomination under the Temporary Residence Transition stream. The applicant sought to nominate a position for a Retail Manager (ANZSCO 142111). The Tribunal, constituted by Warren Stooke AM, was required to determine whether the nominated position and the duties performed by the nominee met the requirements of regulation 5.19(3) of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the duties performed by the nominee corresponded to the occupation of Retail Manager (ANZSCO 142111) or a lower-skilled occupation, specifically Retail Supervisor (ANZSCO 621511). The Tribunal considered the evidence provided regarding the business operations, including its hours, services, number of employees, and the applicant's role as a director. It also examined the outlined duties of the nominee, comparing them against the ANZSCO descriptors for both Retail Manager and Retail Supervisor.

The Tribunal's reasoning focused on the distinction between the higher-level functions of a business owner or manager and the more supervisory tasks of a Retail Supervisor. While the nominee performed some duties consistent with a Retail Supervisor, such as customer service, scheduling, and staff instruction, the Tribunal found that the more significant responsibilities, such as determining product mix, managing budgets, undertaking financial record-keeping, and controlling staff selection and training, were indicative of the business owner or directors. These higher-level functions were not considered to be part of the Retail Manager occupation as defined by ANZSCO, but rather were undertaken by the directors of the business. Consequently, the Tribunal was not satisfied that the nominee's duties aligned with the nominated occupation of Retail Manager.

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination. The applicant had not satisfied the requirements of regulation 5.19(3) of the Migration Regulations 1994, as the nominated position's duties did not match the specified occupation.