DUMPLING WISE PTY LTD (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a decision by the Department of Home Affairs to refuse the nomination of an occupation by Dumpling Wise Pty Ltd. The nominated occupation was Cook. The central dispute concerned 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) of the Migration Regulations 1994.

The Tribunal was required to determine if Dumpling Wise Pty Ltd had satisfied the criteria for the approval of its nomination, specifically focusing on regulation 2.72(10)(c). This regulation mandates that the terms and conditions of employment for the nominee must be no less favourable than those offered to an Australian citizen or permanent resident in an equivalent role at the same location. The Tribunal also considered the definition of "earnings" under regulation 2.57A, which includes wages, amounts dealt with on behalf of the employee, and the agreed monetary value of non-monetary benefits, while excluding reimbursements and certain superannuation contributions.

The Tribunal's reasoning centred on the lack of contemporary information to assess the fairness of the employment terms. While the applicant provided information regarding pay rates from June 2016, the Tribunal found this to be outdated and insufficient for determining current market conditions. The Tribunal noted that it requires contemporary evidence to ascertain whether the offered terms and conditions are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work. Without such evidence, and in the absence of information about whether Australian citizens or permanent residents are currently employed in equivalent roles at the applicant's workplace, the Tribunal was not satisfied that the criteria under regulation 2.72(10)(c) had been met.

Consequently, the Tribunal affirmed the Department's decision to refuse the nomination.