SHIV ENTERPRISE PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by SHIV ENTERPRISE PTY LTD concerning the approval of a nomination for a visa. The dispute centred on whether the terms and conditions of employment offered to the nominee would be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work at the same location.

The primary legal issue before the Tribunal was to determine if the applicant met the criteria for the approval of the nomination, specifically as stipulated by regulation 2.72(10)(c) of the Migration Regulations 1994. This regulation requires that the terms and conditions of employment for the nominee must be no less favourable than those offered to an Australian citizen or permanent resident undertaking equivalent work at the same location. The Tribunal also considered the definition of "earnings" and the circumstances under which terms and conditions are deemed less favourable, as well as the requirements for determining such terms in the absence of comparable Australian workers.

The Tribunal's reasoning focused on the lack of sufficient evidence provided by the applicant to satisfy the requirements of regulation 2.72(10)(c). The applicant had not actively participated in the review process, and the information available to the Tribunal was limited to what was presented to the original decision-maker, which was considered outdated. The Tribunal applied the principles outlined in regulation 2.72(10)(c) and regulation 2.57(3A), which define less favourable terms and conditions based on earnings and the absence of substantial contrary evidence.

Ultimately, the Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not demonstrated that the proposed terms and conditions of employment for the nominee met the required standard.