SY CORP. PTY LTD (Migration)

This matter concerned an application by SY CORP. PTY LTD for approval of a nomination for a position. The dispute arose from the decision to refuse the nomination, which was affirmed by the Tribunal. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under section 140GB(2) and section 140GBA of the Migration Act 1958 (Cth), and relevantly, regulation 2.72 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of regulation 2.72, particularly subregulation (10)(c), which mandates that the terms and conditions of employment for the nominated position must be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work at the same location. The Tribunal also considered whether the applicant was exempt from this requirement under regulation 2.72(10AB) if their annual earnings were equal to or greater than AUD 250,000. A further issue was whether the applicant had provided sufficient updated and current information to satisfy the Tribunal of compliance with all relevant criteria at the time of its decision.

The Tribunal reasoned that it could not be satisfied that the applicant met the criteria for approval because no updated information had been provided in response to the Tribunal's request. Specifically, the Tribunal noted that the nominated occupation was Interior Designer with a guaranteed base pay of AUD 56,000 per year, which was less than the threshold specified in IMMI 13/038, meaning the exemption under regulation 2.72(10AB) did not apply. Consequently, the requirement under regulation 2.72(10)(c) to provide terms and conditions no less favourable than those for an Australian worker was engaged. The Tribunal applied regulation 2.57(3A), which defines less favourable terms as those with lower earnings in the absence of substantial contrary evidence. As the applicant had not provided the requested information, the Tribunal was unable to be satisfied that the criteria were met.

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