A Bhardwaj & R Rai (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse the approval of a nomination for a Subclass 457 visa. The applicant sought to have the nomination for the occupation of Chef approved. The core of the dispute revolved around whether the terms and conditions of employment offered to the nominee would be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work at the same location, as required by regulation 2.72(10)(c) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant had satisfied the criteria for the approval of the nomination, specifically focusing on regulation 2.72(10)(c). This regulation mandates that the terms and conditions of employment for the nominee must be no less favourable than those offered to an Australian citizen or permanent resident in an equivalent role at the same location. The Tribunal also considered the definition of "earnings" and the method for determining favourable terms and conditions, as outlined in regulation 2.57(3A) and 2.57A, and the circumstances where these requirements might not apply under regulations 2.72(10AA) and 2.72(10AB).

The Tribunal's reasoning centred on the lack of evidence provided by the applicant. The Tribunal noted that no documentation was submitted to support the review application, and crucially, there was no evidence demonstrating the nominee's terms and conditions of employment, including earnings. Without this information, the Tribunal could not be satisfied that the terms and conditions offered were no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work. The Tribunal applied the principles of regulation 2.72(10)(c) and the associated definitions and exceptions, concluding that the applicant had failed to meet the evidentiary burden.

Consequently, the Tribunal affirmed the original decision to refuse the nomination.