DAIWA FOOD CORPORATION (SYD) PTY LTD (Migration)

This matter concerned an application by DAIWA FOOD CORPORATION (SYD) PTY LTD to the Administrative Appeals Tribunal (the Tribunal) for review of a decision to refuse the approval of a nomination for a Subclass 457 visa. The applicant, a business supplying Japanese restaurant goods, had nominated an occupation of Sales and Marketing Manager for its ACT branch. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the nominated position of Sales and Marketing Manager substantially aligned with the duties and responsibilities typically associated with that occupation as defined by ANZSCO, and whether the applicant's business operations in the ACT justified such a role. The Tribunal considered the provided position description, which outlined strategic sales planning, leadership, budget control, and market analysis, alongside the applicant's organisational structure, employee numbers in the ACT branch, and financial turnover. The Tribunal also had regard to the delegate's assessment that the role of a Sales and Marketing Manager is generally a high-level, specialised position within a competitive and complex business environment, requiring significant staff and resources.

The Tribunal affirmed the delegate's decision to refuse the nomination. The reasoning was that while some of the listed duties were consistent with a Sales and Marketing Manager, the overall evidence did not demonstrate that the applicant's ACT branch operated within a sufficiently competitive and complex business environment, nor did it possess the scale of staff or resources to warrant such a senior role. The Tribunal found the financial turnover in the ACT branch to be insufficient and noted a lack of evidence of secured contracts or significant client commitments. Consequently, the Tribunal was not satisfied that the nominee would likely perform the breadth of duties expected of a Sales and Marketing Manager as defined by ANZSCO. The Tribunal affirmed the decision not to approve the nomination.