Oh Vienna PL (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered an application by Oh Vienna PL (the applicant) concerning the approval of a nomination for a skilled migration visa. The dispute centred on whether the applicant had met the criteria for approving the nomination, specifically in relation to the nominated position's annual market salary rate. The decision was made by Member Susan Trotter.

The primary legal issue before the Tribunal was to determine if the applicant had satisfied the requirements of regulation 2.72 of the Migration Regulations 1994, particularly concerning the determination of the annual market salary rate (AMSR) for the nominated occupation. This involved assessing whether the applicant had correctly determined the AMSR in accordance with the prescribed legislative instruments and whether the nominee's projected annual earnings met the required thresholds, including the Temporary Skilled Migration Income Threshold (TSMIT).

The Tribunal's reasoning focused on the applicant's failure to provide sufficient evidence to demonstrate how the AMSR was determined, as required by regulation 2.72(15)(c). The delegate had noted that the applicant had not provided any information explaining their AMSR calculation, leading to a lack of satisfaction that the method specified in the regulations had been followed. The Tribunal also observed that the applicant had indicated that no Australian worker was employed in an equivalent position and that an equivalent Australian worker would not be paid in accordance with an enterprise agreement or industrial award, which were factors considered in the overall assessment of the nomination criteria.

Ultimately, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal was not satisfied that the applicant had met the applicable criteria for the nomination to be approved.