THE PHAM & PHAN INVESTMENT PTY LTD (Migration)

This matter concerned an appeal by THE PHAM & PHAN INVESTMENT PTY LTD against a decision to refuse the nomination of a position for a Subclass 457 visa. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination, specifically concerning the terms and conditions of employment for the nominated role of Sales & Marketing Manager.

The central legal issue was whether the proposed terms and conditions of employment for the nominee were no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work at the same location, as required by regulation 2.72(10)(c) of the Migration Regulations 1994. This involved considering the definition of "earnings" and the methodology for determining equivalent terms and conditions when no Australian citizen or permanent resident performs equivalent work. The Tribunal also considered whether the nominee's annual earnings met the threshold specified in IMMI 13/028, which would exempt the nomination from the more detailed assessment under regulation 2.72(10)(c).

The Tribunal found that the nominee's annual salary of $54,000 was less than the $250,000 threshold specified in IMMI 13/028, meaning the assessment under regulation 2.72(10)(c) was necessary. As there was no Australian citizen or permanent resident performing equivalent work at the same location, the Tribunal applied the methodology specified in IMMI 09/113 to determine the appropriate terms and conditions. The Tribunal concluded that the applicant had not satisfied all applicable criteria for the nomination to be approved.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.