ESTATE AGENTS PTY LTD (Migration)

This matter came before the Tribunal concerning a nomination for a Subclass 457 visa. The applicant, Estate Agents Pty Ltd, sought to nominate Ms Fathima Ayesha Rizan for the position of Customer Service Manager. The core dispute revolved around whether the nominated position was genuine and whether the terms and conditions of employment offered to the nominee were no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work. The Tribunal was tasked with determining if the applicant met the criteria for approval of the nomination under section 140GB(2) of the Migration Act 1958 and Regulation 2.72 of the Migration Regulations 1994.

The Tribunal was required to assess whether the applicant had complied with the prescribed nomination process, was a standard business sponsor or party to a work agreement, and had correctly identified the nominee. Further, it needed to consider whether there was any adverse information known to Immigration about the applicant or their associates, and crucially, whether the nominated occupation and its corresponding ANZSCO code were specified in the relevant instrument. A key legal issue was the interpretation of Regulation 2.72(10)(c), which 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.

In its reasoning, the Tribunal systematically addressed each criterion under Regulation 2.72. It found that the nomination was lodged correctly, the applicant was a valid standard business sponsor, and the nominee was properly identified. The Tribunal was satisfied that no adverse information was known and that the nominated occupation, Customer Service Manager (ANZSCO 149212), corresponded to a specified occupation. Regarding the terms and conditions of employment, the Tribunal noted that the nominee managed a number of contractors in providing property management services to multiple properties, which was considered exempt from labour market testing. The Tribunal concluded that the applicant met all applicable criteria for the nomination to be approved.

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