1512731 (Migration)

The applicant, Sahib Transport, sought approval for a nomination of an occupation for a Subclass 457 visa. The dispute concerned whether Sahib Transport met the criteria for approval of this nomination under section 140GB of the Migration Act 1958 (Cth) and regulation 2.72 of the Migration Regulations 1994 (Cth). The matter was before the Tribunal for review of a decision not to approve the nomination.

The Tribunal was required to determine if Sahib Transport satisfied the various criteria prescribed by regulation 2.72 for the approval of a nomination. These included whether the nomination was made in accordance with the prescribed process, whether Sahib Transport was a standard business sponsor or party to a work agreement, and whether the nominee was correctly identified. Further issues involved the absence of adverse information, the nominated occupation's correspondence with specified instruments, and crucially, whether the terms and conditions of employment for the nominee were no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work.

The Tribunal reasoned that Sahib Transport had complied with the procedural requirements for making the nomination and was an approved standard business sponsor. It found that the nominee, Mr Gill, was correctly identified and that certain criteria relating to existing Subclass 457 visa holders did not apply as Mr Gill was not such a holder. The Tribunal also determined that there was no adverse information known to Immigration concerning Sahib Transport or associated persons. The nominated occupation, Transport Company Manager, was found to be listed in the relevant instrument. Regarding the terms and conditions of employment, the Tribunal noted that Sahib Transport stated no Australian employees performed equivalent work as the position was new in Western Australia. However, the organisation chart indicated other transport manager positions in New South Wales and South Australia. While the PAYG payment summary for the New South Wales transport manager showed gross payments of $50,769, and the nominee's base rate was $55,000, the Tribunal was advised that payslips for the nominee were unavailable as they were a contractor. Despite this, the Tribunal accepted the submission that the terms and conditions for the nominee and the existing transport company manager were the same, and that the requirements of regulation 2.72(10)(c) were met.

Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision approving the nomination.