X.Z Chen & G Jin & Others (Migration)

This matter concerned an application for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant, X.Z. Chen, sought to have a nomination for a Retail Manager (General) position approved. The nominating entity operated a large delicatessen in Greenfields, Western Australia, employing between six and eight staff. The core dispute revolved around whether the nominated position and the applicant's qualifications and responsibilities met the requirements of regulation 5.19(4) of the Migration Regulations 1994. The decision was made by the Tribunal.

The Tribunal was required to determine whether the nominated position corresponded with the ANZSCO description for a Retail Manager (General), ANZSCO 142111, Skill level 2. Specifically, the Tribunal had to assess if the applicant possessed the necessary experience, qualifications, and attributes, and if the role involved a sufficient level of autonomy and responsibility. Further, the Tribunal needed to consider whether the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents in equivalent roles, and whether there was a genuine need for the position that could not be filled by a local Australian worker.

The Tribunal reasoned that the applicant's responsibilities, previous experience, qualifications, including an MBA from Murdoch University, and years of management experience substantially aligned with the duties of a Retail Manager (General). It acknowledged the challenges in recruiting and retaining management staff in regional areas, particularly in light of recent migration restrictions. The Tribunal found that the remuneration and employment conditions were equivalent to those for comparable positions and met regulatory requirements. It also found that the nominating entity had a satisfactory record of compliance with workplace relations laws and that there was no adverse information known to Immigration. The Tribunal concluded that there was a genuine need for the position, which could not be filled locally, and that the tasks corresponded to the ANZSCO description.

Consequently, the Tribunal set aside the original decision and substituted a decision approving the nomination.