Hueken Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a dispute concerning a nomination application under the Direct Entry stream. The applicant, Hueken Pty Ltd, sought approval for a nominated position, which had been refused by a delegate. The core of the dispute revolved around whether the nominee was genuinely carrying out the duties and responsibilities of a retail buyer, as specified by ANZSCO code 639211, and whether the nominated position itself was genuine.

The Tribunal was required to determine if Hueken Pty Ltd met the requirements of regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the tasks performed by the nominee corresponded to the nominated occupation, whether there was a genuine need for the position, and whether other regulatory requirements, including compliance with workplace relations laws and the absence of adverse information, were satisfied. The delegate's decision had contended that the tasks performed by the nominee, such as ordering price labels and creating promotional materials, were low-level and more akin to a purchasing and supply logistics clerk role.

In its reasoning, the Tribunal considered extensive evidence provided by the applicant, including financial documents, employment contracts, an organisational chart, and a position description. It noted that the applicant operated an Asian food retail store in Cairns, Queensland, since 1980, with the current owner acquiring it in 2016. The Tribunal found that the nominee's salary was commensurate with market rates for a retail buyer. Crucially, the Tribunal concluded that the tasks performed by the nominee did correspond to the duties of a retail buyer and that there was a genuine need for the position. Furthermore, the Tribunal was satisfied that there was no adverse information known to Immigration regarding the nominator and that the nominator had a satisfactory record of compliance with workplace relations laws.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.