Nguyen (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs regarding a Temporary Skill Shortage (TSS) (Class GK) visa, subclass 482, medium-term stream. The applicant, Mr. Nguyen, sought to be employed as a Civil Engineer by P H Homes. The core of the dispute revolved around whether the proposed employment met the requirements for the visa, particularly concerning the nominated position and the salary offered. The Administrative Appeals Tribunal (AAT) was tasked with determining the merits of the applicant's case.

The Tribunal was required to consider several key issues. Firstly, it needed to assess whether the nominated occupation of Civil Engineer, ANZSCO Code 233211, was genuine and appropriate for the applicant's qualifications and the business's needs. Secondly, the Tribunal had to determine if the market testing conducted by the nominator, P H Homes, was sufficient and demonstrated that no suitably qualified Australian citizen or permanent resident was available for the position. Finally, the Tribunal was to consider the proposed salary and employment conditions to ensure they met the legislative requirements for the subclass 482 visa.

In its reasoning, the Tribunal noted that the nominator, P H Homes, was an approved Standard Business Sponsor and had submitted an approved nomination. Evidence was presented regarding the applicant's qualifications, including a Master of Technology (Civil) and a positive assessment from Engineers Australia. The Tribunal also reviewed the employment contract, which proposed a salary of $75,000 per annum, commencing upon the grant of the visa and continuing for at least two years. However, the Tribunal found that the market testing conducted by the nominator, which involved advertisements for a "Graduate Structural Engineer" with salary ranges between $50,000 and $65,000, did not adequately reflect the salary being offered to the applicant. The Tribunal concluded that the advertised positions and the stated salary expectations for a candidate with limited Australian experience did not align with the proposed $75,000 salary for the Civil Engineer role.

Consequently, the Tribunal determined that the decision under review should be remitted to the Department of Home Affairs for reconsideration. This remittal was based on the finding that the market testing evidence did not sufficiently support the proposed salary for the nominated occupation, raising questions about whether the nominator had genuinely sought to employ an Australian worker at the offered rate.