Probity Investments Pty Ltd (Migration)

This matter concerned an application by Probity Investments Pty Ltd for the approval of a nomination for a Subclass 457 visa. The dispute centred on whether the applicant met the criteria for the nomination, specifically concerning the base rate of pay for the nominated employee. The case was heard by the Migration Review Tribunal.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the requirements of Regulation 2.72(10)(cc) of the Migration Regulations 1994, which mandates that the base rate of pay for an equivalent Australian employee must be greater than the Temporary Skilled Migration Income Threshold (TSMIT). The Tribunal also considered whether the applicant met the criteria under Regulation 2.72(10A)(b) and whether the applicant had provided requested information within the prescribed period, thereby losing the right to a hearing.

The Tribunal reasoned that the applicant's stated base rate of pay of $41,000 per annum was below the TSMIT of $53,900. It further noted that bonuses or commissions, which were included in the proposed annual earnings, were not considered part of the "base rate of pay" or "earnings" under the relevant regulations. The Tribunal found that the applicant had failed to provide the requested information clarifying the base rate of pay within the stipulated timeframe, which resulted in the loss of the right to a hearing. Consequently, the Tribunal was not satisfied that the applicant met the applicable criteria for the nomination to be approved.

The Tribunal affirmed the decision not to approve the nomination.