SOUL NARA PTY LTD (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse the nomination of a position by SOUL NARA PTY LTD. The core of the dispute concerned whether the applicant, SOUL NARA PTY LTD, had provided sufficient evidence to satisfy the criteria for the approval of the nominated position, specifically regarding the terms and conditions of employment for the nominee. The Tribunal was required to determine if the applicant met the requirements of section 140GB(2) of the Migration Act 1958 and Regulation 2.72 of the Migration Regulations 1994, particularly Regulation 2.72(10)(c), which mandates that the terms and conditions of employment must be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work.

The legal issues before the Tribunal were whether SOUL NARA PTY LTD had met the criteria for the approval of the nomination, with a specific focus on demonstrating that the proposed terms and conditions of employment for the nominee would be no less favourable than those offered to an Australian citizen or permanent resident in an equivalent role. This involved considering the definition of "earnings" and "non-monetary benefits" as defined in the regulations, and how to assess terms and conditions in the absence of directly comparable Australian employees. The Tribunal also considered the applicant's failure to provide further evidence in response to an invitation under section 359(2) of the Migration Act 1958.

The Tribunal reasoned that the applicant had failed to provide sufficient evidence to satisfy Regulation 2.72(10)(c). The primary decision record indicated a lack of adequate supporting information regarding the terms and conditions of employment. Crucially, at the time of the review application, no further evidence was submitted, and the only supporting information available was at least two years old, rendering it insufficient for the Tribunal to give it any weight. Consequently, the Tribunal was not satisfied that the applicant had met the applicable criteria for the nomination to be approved.

The Tribunal affirmed the decision under review to refuse the nomination.