Frontrunner Consolidated Holdings Pty Ltd (Migration)

This matter came before the Administrative Appeals Tribunal (AAT) concerning a decision to refuse the nomination of a position under the Direct Entry stream of the Migration Regulations 1994. The applicant, Frontrunner Consolidated Holdings Pty Ltd, sought approval for a nominated position, but this was refused by the delegate. The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination under regulation 5.19(4).

The primary legal issue before the Tribunal was whether the nominated position met the criteria for approval under the Direct Entry nomination stream, specifically focusing on regulation 5.19(4)(e), which mandates that the terms and conditions of employment for the nominated position must be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same location. The Tribunal also considered whether there was a genuine need for the position and if it could be filled by a locally resident Australian citizen or permanent resident, as stipulated in regulation 5.19(4)(h)(ii)(C) for regional positions.

The Tribunal affirmed the delegate's decision to refuse the nomination. The applicant's Director provided evidence that the nominated employee, Ms Bhattal, would be paid an annual salary of $47,008. However, the Tribunal heard that a previous Australian citizen who held the same full-time Retail Manager role was paid an annual salary of $47,500, working between 30 and 38 hours per week. While the applicant argued that the previous employee was engaged on a casual basis and thus attracted a loading, the Tribunal found that the proposed salary for the nominee was less favourable than that provided to an Australian citizen for equivalent work, failing to meet the requirements of regulation 5.19(4)(e). Furthermore, the Tribunal noted that there was no evidence of any other advertising for the role, which was relevant to the genuine need and the inability to fill the position with a local resident. Consequently, the Tribunal was not satisfied that the applicant met the necessary criteria for the nomination to be approved.