Yagnesh Kumar Sheth and Nirali Sheth ATF Sheth Family Trust (Migration)

This matter concerned an application by Yagnesh Kumar Sheth and Nirali Sheth ATF Sheth Family Trust for approval of a nomination for a Retail Manager position under the Direct Entry stream. The applicant sought to nominate Mr Hardikkumar Rameshbhai Patel for the role. The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination, specifically under regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had demonstrated a genuine need for the nominated Retail Manager position, as required by regulation 5.19(4)(h)(i)(AA) or 5.19(4)(ii)(B). This involved assessing whether the tasks of the position corresponded to the occupation of Retail Manager and whether the business genuinely required a manager in addition to the director, particularly given the size and scope of the business. The Tribunal also considered the applicant's failure to provide requested updated information.

The Tribunal affirmed the delegate's decision to refuse the nomination. The Tribunal found that the applicant had not provided sufficient evidence to establish a genuine need for a Retail Manager. While the position description mirrored the ANZSCO requirements, the Tribunal considered it implausible that a director of a small business would relinquish control over key managerial tasks such as budgeting and staff recruitment. Furthermore, there was no evidence that the nominee had commenced employment in the position, which the Tribunal viewed as indicative of a lack of genuine need. The Tribunal also noted the significant age of the submitted documentation and the applicant's failure to respond to requests for current information. Despite the Regional Certifying Body's advice, the Tribunal was not compelled to accept it and found that other information before it led to the conclusion that the requirements of regulation 5.19(4)(h) were not met.