ALJATO PTY LTD & IMOGEN CORPORATION PTY LTD (Migration)

This matter concerned an application by ALJATO PTY LTD and IMOGEN CORPORATION PTY LTD for the approval of a nominated position, which was refused by the Department of Home Affairs. The applicants sought review of this decision before the Administrative Appeals Tribunal (AAT). The core of the dispute revolved around whether the terms and conditions of employment offered to the nominee were no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work at the same location, as required by migration regulations.

The Tribunal was required to determine if the applicants had satisfied the criteria for the approval of the nomination, specifically focusing on Regulation 2.72(10)(c) of the Migration Regulations 1994. This regulation mandates that the terms and conditions of employment for a 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 specific requirements for determining terms and conditions where no equivalent Australian workers are employed.

The Tribunal's reasoning centred on the lack of contemporary information to satisfy Regulation 2.72(10)(c). It noted that it had no current evidence regarding whether Australian citizens or permanent residents were performing equivalent work at the applicant's workplace. Consequently, the Tribunal could not give weight to outdated pay rate information from May 2016. As the Tribunal was not satisfied that the offered terms and conditions would be no less favourable than those provided to Australian workers, it found that the applicants had failed to meet this crucial criterion.

Accordingly, the Tribunal affirmed the Department's decision to refuse the nomination.