BHAGWATI CASTLE HILL PTY LTD (Migration)

This matter concerned an appeal to the Tribunal regarding a decision not to approve a nomination for a Subclass 457 visa. The applicant, BHAGWATI CASTLE HILL PTY LTD, sought to nominate an occupation. The core of the dispute revolved around whether the applicant had satisfied the criteria for approval of the nomination, specifically concerning the terms and conditions of employment for the nominated individual.

The Tribunal was required to determine if the applicant met the criteria for approval of the nomination under section 140GB(2) of the Act and regulation 2.72. A key issue was 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). This involved considering the definition of "earnings" and the specific requirements for determining terms and conditions when no equivalent Australian workers are employed.

The Tribunal found that the applicant had declared no Australian employees performing equivalent work and had stated the nominee's guaranteed annual earnings. Consequently, regulation 2.72(10AA) applied, requiring the applicant to determine the terms and conditions of employment using a method specified in instrument IMMI 09/113. However, the applicant had submitted no evidence to support their assertion of compliance with regulation 2.72(10)(c) and had failed to respond to the Tribunal's invitation to provide further information. As a result, the Tribunal was not satisfied that the terms and conditions of employment would be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work.

Accordingly, the Tribunal affirmed the original decision not to approve the nomination, finding that the applicant had not met the applicable criteria.