Arch Melbourne Pty Ltd ATF The Trustee for Archie and Varinder Trust (Migration)

This matter concerned an appeal by Arch Melbourne Pty Ltd ATF The Trustee for Archie and Varinder Trust against a decision to refuse the approval of a nomination for a visa. The core of the dispute revolved around whether the nominated position of Dressmaker or Taylor was genuine and met the relevant regulatory criteria. The Administrative Appeals Tribunal (AAT) was tasked with determining if the applicant had satisfied the requirements for nomination approval.

The primary legal issue before the Tribunal was whether the applicant had met the criteria for approval of the nomination, specifically concerning the terms and conditions of employment for the nominated individual. This involved assessing whether these terms and conditions would be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work at the same location, as stipulated by regulation 2.72(10)(c) of the Migration Regulations 1994. The Tribunal also considered the lack of contemporary information regarding market conditions and the applicant's failure to respond to a request for information.

The Tribunal's reasoning focused on the absence of sufficient contemporary evidence to satisfy regulation 2.72(10)(c). It noted that it required up-to-date information to determine if the offered terms and conditions were comparable to those for an Australian worker in an equivalent role. The Tribunal found that the information provided regarding pay rates was outdated (July 2016) and therefore could not be given weight. Consequently, the Tribunal was not satisfied that the employment conditions for the nominee would be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work.

The Tribunal affirmed the decision under review to refuse the nomination.