HL & JM TRADING PTY LTD (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an employer nomination for a position under the Temporary Residence Transition stream. The applicant, HL & JM TRADING PTY LTD, sought approval for a nominated position as a Café or Restaurant Manager for an employee holding a Subclass 457 visa. The core dispute revolved around whether the terms and conditions of employment offered for the nominated position met the regulatory requirements, specifically the "no less favourable" clause.

The Tribunal was required to determine if the nominated position and the associated employment terms and conditions satisfied the criteria outlined in regulation 5.19(3) of the Migration Regulations 1994. This included assessing whether the application was compliant, the status of the nominator, the nominee's previous employment history, and crucially, whether the terms and conditions of employment for the nominated position were no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work.

The Tribunal reasoned that the application met the formal requirements of regulation 5.19(3)(a) and that the nominator satisfied the criteria under regulation 5.19(3)(b). It also found that the nominee's previous employment history met the requirements of regulation 5.19(3)(c). The central issue of the terms and conditions of employment was addressed by considering regulation 5.19(3)(e), which mandates that these terms must be no less favourable than those offered to an Australian citizen or permanent resident for equivalent work. The Tribunal concluded that the nominated position, despite offering a significantly higher salary than typically seen for individuals with considerable experience and seniority in similar roles, did not breach this regulation.

Consequently, the Tribunal set aside the original decision and substituted a new decision approving the employer's nomination.