Shira Hospitality Group Pty Ltd (Migration)

This matter concerned an application by Shira Hospitality Group Pty Ltd for the approval of a nomination for a Subclass 457 visa. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for approval of the nomination, specifically concerning the payment of the nominee’s salary in relation to the Temporary Skilled Migration Income Threshold (TSMIT). The core dispute revolved around whether the proposed salary of $54,000 gross per annum, when accounting for the superannuation guarantee, fell below the TSMIT of $53,900.

The legal issues before the Tribunal were whether the applicant met the criteria for approval of the nomination under section 140GB(2) of the Migration Act 1958 and Regulation 2.72 of the Migration Regulations 1994. Specifically, the Tribunal had to consider if the applicant's nominee would be paid the minimum salary required by the TSMIT, and whether the applicant satisfied the criteria in Regulation 2.72(10)(cc) and related provisions concerning the base rate of pay and annual earnings. The Tribunal also considered whether any exceptions or disregards applied.

The Tribunal's reasoning focused on the interpretation of "base rate of pay" and "earnings" as defined in the Migration Regulations. It noted that Regulation 2.72(10)(cc) requires the base rate of pay to be greater than the TSMIT, unless specific exceptions apply. The applicant's nomination stated a gross salary of $54,000, but did not make provision for the superannuation guarantee. The Tribunal calculated that after deducting the 9.5% superannuation guarantee ($5,130), the nominee's effective salary would be $48,870, which is less than the TSMIT of $53,900. The Tribunal found that the exceptions under Regulation 2.72(10A) and 2.72(10AB) were not applicable in this case.

Consequently, the Tribunal affirmed the decision of the Department of Home Affairs to refuse the nomination.