V D NGUYEN & T T HOANG (Migration)

This matter concerned a review by the Tribunal of a decision to refuse the nomination of an occupation. The applicant, a partnership operating a bakery, nominated the occupation of Baker for Mr Min Thu Tran, offering a base salary of $96,400. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under the relevant migration regulations.

The primary legal issue was whether the nominated position and the proposed employment arrangements satisfied the requirements of Regulation 2.72 of the Migration Regulations 1994, particularly concerning the terms and conditions of employment and the base rate of pay compared to an equivalent Australian worker. The Tribunal also considered the evidence regarding the business's financial capacity and the nominee's actual remuneration.

The Tribunal affirmed the decision to refuse the nomination. It found that the evidence did not establish that the terms and conditions of employment, including the base rate of pay, would be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work. Crucially, the Tribunal noted that the nominee was not being paid a salary but was receiving accommodation, food, and a small amount of cash, which did not meet the regulatory requirements for a base rate of pay. The Tribunal concluded that the applicant had not demonstrated that the nominated position met the necessary criteria for approval.