H SOHI & M KAUR (Migration)

This matter concerned an appeal by H SohI and M Kaur against a decision to refuse the approval of a nomination. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for approval of the nomination under section 140GB(2) of the Act, and for nominations made after 23 November 2013, section 140GBA of the Act. Specifically, the Tribunal considered regulation 2.72(10)(c) of the Migration Regulations 1994, which mandates that the terms and conditions of employment for a nominee must be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work at the same location.

The Tribunal's reasoning focused on the interpretation of "terms and conditions of employment" and "earnings" as defined in the Regulations. Regulation 2.72(10)(c) requires that if no Australian citizens or permanent residents are performing equivalent work, the terms and conditions must be determined by a method specified in legislative instrument IMMI 09/113. However, this requirement is disapplied if the nominee's annual earnings are equal to or greater than $250,000, as specified in IMMI 13/028. In this case, the nomination application stated the nominee's base rate of pay as $97,700, which was not equal to or greater than $250,000. Consequently, regulation 2.72(10)(c) applied.

The Tribunal found that it was not satisfied that the applicant met the applicable criteria for the nomination to be approved. The evidence before the Tribunal, including the nomination and the Employment Agreement, indicated a base rate of pay of $97,700. As this amount did not meet the threshold specified in IMMI 13/028, the Tribunal concluded that regulation 2.72(10)(c) was applicable and that the applicant had failed to demonstrate compliance with its requirements. The Tribunal therefore affirmed the decision under review to refuse the nomination.