Base Backpackers Pty Limited (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to refuse the approval of a nomination for a Subclass 482 visa. The applicant, Base Backpackers Pty Limited, sought approval for a nomination for the position of hostel manager under the short-term stream. The nominated employee was Mr. Zapata Nino. The Department's refusal was based on the applicant's failure to satisfy subregulation 2.72(15) of the Migration Regulations, specifically concerning the Temporary Skilled Migration Income Threshold (TSMIT).

The primary legal issue before the Tribunal was whether the applicant met the criteria for the approval of the nomination, particularly in relation to the annual earnings of the nominated employee and the TSMIT. The Tribunal was required to determine if the monetary component of the Annual Market Salary Rate (AMSR) for the nominated occupation was not less than the TSMIT, or if it was reasonable to disregard this requirement. This involved assessing whether the employment terms and conditions offered to the nominee were no less favourable than those provided to an equivalent Australian worker.

The Tribunal found that the Department's original assessment was based on outdated information regarding the applicable industrial instrument. Since the Department's decision, the Base and Palace Employee Collective Agreement 2008-2013 had terminated, and employees were now covered by the Hospitality Industry (General) Award 2020. Under this Award, the minimum annual salary for a managerial staff (hotels) level position was $51,130. Crucially, the Tribunal was presented with evidence, including pay records and letters of offer, demonstrating that the applicant paid its managerial staff in excess of the award amount, with Mr. Zapata Nino's salary since May 2022 being $70,000. This evidence satisfied the requirement that the AMSR was not less than the TSMIT, and it was reasonable to disregard the previous concerns.

Consequently, the Tribunal set aside the Department's decision and substituted it with a decision approving the nomination. The Tribunal was satisfied that the applicant met the requirements of regulation 2.72, including the payment of the nomination training contribution charge and the labour market testing requirements, and that the nominated occupation corresponded to the genuine position offered.