C Keay & D Keay (Migration)

This matter concerned an application by C Keay & D Keay for the approval of a nominated position for a Subclass 482 visa, specifically in the medium-term stream for the occupation of Bricklayer. The core dispute revolved around whether the applicant had met all the necessary criteria for the nomination to be approved, particularly in light of previously identified adverse information concerning superannuation underpayments. The decision was made by P. Maishman, a Member of the Tribunal.

The Tribunal was required to determine if the applicant had satisfied the requirements of Regulation 2.72 of the Migration Regulations 1994, which includes criteria relating to the nomination process, the genuineness of the position, labour market testing, and the absence of adverse information. Specifically, the Tribunal had to consider whether the applicant was an approved work sponsor, had complied with the prescribed nomination process, and whether any adverse information known to Immigration was either non-existent or reasonable to disregard. A key issue was whether the applicant's previous underpayment of superannuation constituted a contravention of Commonwealth law, thereby rendering it adverse information that could not be disregarded.

The Tribunal reasoned that the previous finding of superannuation underpayment was not a contravention of the *Superannuation Guarantee Charge Act 1992* or the *Superannuation Guarantee (Administration) Act 1992*. Instead, the Court clarified that such underpayments incurred a payment of a charge rather than constituting a contravention of those specific Acts. Consequently, the underpayment was not considered adverse information as defined by the Regulations. Having determined this, and finding that all other procedural and substantive requirements of Regulation 2.72 were met, including the genuineness of the position and compliance with employment laws, the Tribunal concluded that the applicant had satisfied all applicable criteria for the nomination.

Accordingly, the Tribunal set aside the previous decision not to approve the nomination and substituted a decision approving the nomination.