E Coombes & A Jha (Migration)

This matter concerned an appeal by E Coombes and A Jha against a decision to refuse the approval of a nomination for a position. The applicants, who operated two Subway franchises in regional Australia, sought approval for a nominated position of Retail Manager (ANZSCO code 142111, skill level 2) for their second store. The delegate had refused the nomination, being of the view that the actual duties of the position corresponded to those of a Retail Supervisor (ANZSCO code 621511, skill level 4), which did not meet the required ANZSCO skill level. The case was heard by Denise Connolly, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the nominated position met the requirements of regulation 5.19(4) of the Migration Regulations 1994, specifically subregulation (4)(h)(ii)(D), which mandates that the tasks of the position correspond to those of an occupation at ANZSCO skill level 1, 2, or 3. The applicants contended that the role was that of a Retail Manager, while the delegate concluded it was more akin to a Retail Supervisor.

The Tribunal affirmed the delegate's decision to refuse the nomination. It was satisfied that the position was located in regional Australia, as required by regulation 5.19(4)(h)(ii)(A). However, the Tribunal found that the applicants had not demonstrated that the tasks of the position corresponded to an occupation at ANZSCO skill level 1, 2, or 3, as required by regulation 5.19(4)(h)(ii)(D). Despite the applicants providing evidence of franchise management training and operational documents, the Tribunal concluded that the duties described were more consistent with a Retail Supervisor role at skill level 4. Consequently, the nomination could not be approved.