Cleancorp Services Pty Ltd (Migration)

The case involved Cleancorp Services Pty Ltd, the applicant, and a decision under review concerning a nomination for a Subclass 457 visa. The applicant sought to nominate Mr Sergio Mauricio Ballesteros Becerra for the occupation of Facilities Manager. The central dispute revolved around whether the nomination met the criteria set out in the Migration Regulations 1994, specifically concerning the terms and conditions of employment for the nominee and the applicability of the nominated occupation under relevant instruments. The matter was heard by K. Chapman.

The primary legal issues before the Tribunal were whether the applicant, as an approved sponsor, had met the requirements of Regulation 2.72 of the Migration Regulations 1994 for the approval of the nomination. This included determining if the nomination was made in accordance with the prescribed process, if the applicant was a standard business sponsor, if the nominee was correctly identified, and crucially, 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. Additionally, the Tribunal had to consider whether the nominated occupation, Facilities Manager (ANZSCO 149913), was applicable to the nominee, particularly in light of any inapplicability conditions or "caveats" attached to that occupation in the relevant legislative instrument (IMMI 17/060).

The Tribunal's reasoning focused on systematically assessing each criterion under Regulation 2.72. It found that the applicant had complied with the procedural requirements, was a standard business sponsor, and had correctly identified the nominee. The Tribunal accepted the evidence presented, including oral testimony from Mr Fischer and the nominee, Mr Ballesteros Becerra, and documentary evidence such as the employment contract and position description. This evidence satisfied the Tribunal that the nominee's duties and tasks were commensurate with the occupation of Facilities Manager and that the nominated position was located in a commercial building and involved managing multiple services, thereby overcoming the "caveats" associated with the occupation. The Tribunal concluded that the terms and conditions of employment were also met, as the nominee's pay was commensurate with their skills and experience, and an Australian citizen or permanent resident would receive the same pay for equivalent work.

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