Tram Thi Tran (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a migration matter involving Tram Thi Tran as the applicant and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs as the respondent. The dispute concerned the applicant's failure to provide requested information within the prescribed period, which led to the affirmation of a decision to refuse a nomination under the Direct Entry nomination stream. The Tribunal was tasked with determining whether the applicant met the criteria for the approval of the nomination.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of Regulation 2.72 of the Migration Regulations 1994, specifically concerning the terms and conditions of employment for the nominated position. This regulation mandates that the employment conditions for a nominee must be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work at the same location, unless the nominee's annual earnings meet a specified high threshold. The Tribunal also had to consider whether it was satisfied that all relevant criteria were met at the time of its decision, given the applicant's non-response to a request for updated information.

The Tribunal reasoned that it could not be satisfied that the applicant met the nomination criteria because the applicant failed to provide the requested updated and current information about themselves and their business. Furthermore, the Tribunal noted that the proposed earnings for the nominated Hairdresser position ($54,000 base pay, $59,130 guaranteed annual earnings) were below the threshold specified in IMMI 13/028 ($250,000), meaning the exemption from Regulation 2.72(10)(c) did not apply. As the applicant did not provide evidence to the contrary, the Tribunal applied Regulation 2.57(3A), which states that terms and conditions are less favourable if earnings are lower without substantial contrary evidence.

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