ADJ Financial Services Pty Ltd (Migration)

The Administrative Appeals Tribunal considered an application by ADJ Financial Services Pty Ltd (the Company) for approval of a nomination for a skilled migration position. The dispute centred on whether the terms and conditions of employment offered to the nominee, Mrs Sookoowareea, were less favourable than those provided to an Australian citizen or permanent resident performing equivalent work at the same location. The Tribunal was required to determine if the Company met the criteria for approval of the nomination under section 140GB(2) and section 140GBA of the Migration Act 1958 (Cth) and Regulation 2.72 of the Migration Regulations 1994 (Cth).

The primary legal issue was whether the nominee's proposed salary of $65,000 per annum was less favourable than that of an Australian citizen or permanent resident employed by the Company in an equivalent position, who earned $70,000 per annum. Regulation 2.72(10)(c) mandates that terms and conditions of employment must be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work. Regulation 2.57(3A) defines "less favourable" in terms of earnings, stating that a set of terms is less favourable if the earnings provided are less, unless there is substantial contrary evidence. The definition of "earnings" under Regulation 2.57A includes wages and the agreed money value of non-monetary benefits.

The Tribunal found that the Company had not provided any explanation for the disparity in salary between the nominee and its Australian employee in an equivalent role. In the absence of such an explanation, the Tribunal was not satisfied that the terms and conditions offered to the nominee were no less favourable than those provided to an Australian citizen or permanent resident. Consequently, the Tribunal affirmed the decision under review to refuse the nomination.