Decision: The Tribunal sets aside the decision under review and remits the application for reconsideration, in accordance with the order that the nomination meets the following criteria:

MIGRATION - approval of nominated position (employer nomination) - Subclass 482 - medium-term stream - expedited decision on the papers - annual earnings and annual market salary rate - company now relies on current market salary rate - referenced job advertisements and salary surveys - genuine and full-time position - no employees working in same occupation at same location - requirements are met - decision under review remitted

Administrative Review Tribunal Act 2024 (Cth), s 106

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Migration Act 1958 (Cth), ss 140GB, 140GBA

Migration Regulations 1994 (Cth), rr 1.03, 2.57A, 2.72, 2.73

1. This is an application for review of a decision made by a delegate of the Minister on 9 August 2024 to refuse to approve the applicant's nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
2. The applicant, approved sponsor People's First Choice Australia Pty Ltd (the Company), applied for approval on 22 March 2024. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of 3 alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination. These criteria are extracted in the Attachment to this decision. Additional criteria are specified in s 140GBA of the Act.
3. In this case, the occupation of Accountant (General) ANZSCO 221111, is nominated for a Subclass 482 visa in the Medium-term stream. The position is located at the Company's business at Braybrook in north-west Melbourne.
4. The delegate decided not to approve the nomination on the basis that the Company did not satisfy reg 2.72(15) of Regulations, which relates to the nominee's annual earnings and the annual market salary rate for the nominated occupation. The delegate expressly notes that the Company's nomination states that it used an Enterprise Agreement to determine the nominee's market salary rate but did not give details of which Enterprise Agreement had been considered nor was a copy of the Enterprise Agreement provided in support of the nomination.
5. After refusal of its nomination application on 9 August 2024, the Company sought review of the delegate's decision in the Administrative Appeals Tribunal (the AAT). No documentation was lodged in support of the review application at the time it was lodged with the AAT by the Company's then representative. On 4 November 2024, the AAT was notified of the appointment of a new representative, immigration lawyer Rick Gunn. .
6. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
7. Subsequently, on 23 December 2025 the representative requested the Tribunal make an expedited decision on the papers on the basis of the accompanying extensive documentation lodged in support of the review application at that time. Documentation provided in this regard is discussed below.
8. Following constitution of the matter to the Member and review of evidence submitted by the representative, the Tribunal did not hold a hearing in this matter. Rather, it proceeded to make a decision on the papers consistent with s 106(3) of the Administrative Review Tribunal Act 2024.
9. For the following reasons, the Tribunal has decided to set aside the decision under review and remit the matter for reconsideration.

1. The issue in this case is whether the Company meets the requirements of reg 2.72(15) of the Regulations.

1. Regulation 2.72(15) contains several requirements which must be met if the nominee's annual 'earnings in relation to the nominated occupation will not be at least the amount specified in the relevant legislative instrument, that is, IMMI 18/033. The amount specified in Item 5 of IMMI 18/033 is currently set at $250,000.
2. The meaning of 'earnings' is set out in reg 2.57A which provides that, in circumstances where reg 2.72(15) applies, as in this case, it requires that:
   • the annual market salary rate (the AMSR)for the occupation has been determined by the applicant by reference to IMMI 18/033: reg 2.72(15)(c). The term 'annual market salary rate' means 'the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location': reg 1.03;
   • the AMSR, excluding any 'non-monetary benefits' (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in Item 6 of IMMI 18/033 (the TSMIT), unless the rate for the occupation is not less than the TSMIT and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a). For nomination applications lodged on or between 1 July 2023 and 30 June 2024, as in this case, the TSMIT was set at $70,000: IMMI 18/033 as amended by LIN 23/045;
   • the nominee's annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
   • the nominee's annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and,
   • either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
3. The Company lodged with the Department of copy of the nominee's Contract of Employment dated 27 December 2021 which was signed by the nominee on 18 January 2022 (the Contract of Employment). Subsequently, as set out in the letter from the Company's Managing Director dated 15 April 2025 lodged with the Tribunal, the nominee's Contract of Employment has been varied such that his pay for his 38 hours per week has increased over time from $35.50 per hour to $44.25 per hour effective as at 17 February 2025. Also lodged with the Tribunal was evidence of the nominee's payslip in the period 17 February 2025 to 2 March 2025 as confirmation of this information. This establishes that the nominee's current annual earnings are $87,438 which does not include applicable superannuation.
4. As noted above, the delegate's decision states that the Company used an Enterprise Agreement but it did not state agreement was used and all was a copy provided to the Department for consideration. Further, no information was provided to demonstrate the market salary rate used to calculate an appropriate salary for the nominee. Review of the Contract of Employment confirms that it states:

'The parties acknowledge that they have no intention of incorporating any Award, Certified, Collective or Enterprise Agreement into this Contract'.

1. The Company's nomination was prepared by its former representative. The current representative submits, and the Tribunal accepts, that the former representative's reference to the Company's determination of the current market salary rate by reference to an Enterprise Agreement was clearly erroneous. It accepts that the Company now relies on the current market salary rate for the nominated position by reference to array of job advertisements and salary surveys reviewed by the Company as set out below. It is unfortunate that, although the Department issued a s 56 request for further information to address the requirement in reg 2.72(10) of the Regulations that the position associated with the nominated occupation is a genuine and full-time position, no request was made by the delegate to clarify reference in the nomination form to the 'Enterprise Agreement' despite the clause in the Contract of Employment referred to above.

1. Based on evidence lodged with the Department and the Tribunal, the annual earnings in relation to the nominated occupation will not be at least the specified amount of $250,000 per annum. Therefore, the requirements of reg 2.72(15) must be met in this case.
2. As confirmed in documentation lodged with the Department and reiterated in the representative's submission, there are no Australian employees working in the same occupation of Accountant at the same location in Braybrook, Victoria. Where there are no Australian employees performing equivalent work, IMMI 18/033 sets out the method for determining the AMSR.
3. Item 8 of IMMI 18/033 provides that where there is a fair work instrument, state industrial instrument or transitional instrument applicable to the nominated occupation, the AMSR for that occupation is the annual earnings of an equivalent Australian worker specified in those instruments. Alternatively, where no such instrument applies, the AMSR must be determined by reference to 'relevant information' as that term is defined in Item 4 of IMMI 18/033 which includes but is not limited to: information published in the Australian government's Job Outlook website; job advertisements for a national recruitment website; written advice from registered employer associations and/or unions; and, remuneration surveys generated across the relevant industry by a reputable organisation.
4. The Company has provided external market rates evidence for the position of Accountant in Melbourne to support the nominee's proposed salary given that there are no equivalent Australian employees doing the same work as the nominee. Evidence provided includes:
   1. Seek PayScale showing a salary range of $80,000 - $95,000;
   2. Jora PayScale as at 23 October 2025 showing the range of $75,000 - $95,000 with an average salary of $67,416;
   3. Glassdoor PayScale showing a range of $70,000 - $100,000 with an average of $83,000;
   4. Indeed report for the position of Accountant confirming an average salary of $80,141;
   5. Jobs Outlook Accountant Overview showing a medium weekly salary come of $1,841: that is, annualised to $95,732;
   6. advertisements for an Accountant listed on Jora for salaries of:

a) $70,000 - $90,000 (Swan Hill); > > b) $77,000 - $85,000 (Deer Park);

7. advertisements for an Accountant listed on Seek for salaries of

a) $70,000 - $85,000 (Moorabbin); > > b) $73,000 - $76,000 (Campbellfield); > > c) $75,000 - $90,000 (Melbourne Inner City, South Melbourne); > > d) $80,000 - $90,000 (Bentleigh East, Port Melbourne);

8. a bundle of further Seek job advertisements showing salary ranges between $70,000 - $110,000; and, 9. an advertisement for an Accountant listed on Indeed for a salary of $73,00 - $76,000 at Campbellfield.
9. The Tribunal accepts the evidence provided in relation to salary survey data as well as the evidence of advertisements for the position of Accountant in Melbourne. It also accepts that the nominee's annual earnings have been determined by the Company as appropriate for the nominee based on his qualifications, skills and experience.
10. As the AMSR for the nominated position has now been demonstrated to have been determined by the Company in accordance with IMMI 18/033, the Tribunal is satisfied that the requirements of reg 2.72(15)(c) of the Regulations are met.
11. The TSMIT at the time of lodgement of the nomination was $70,000. The AMSR for the occupation is not less than the TSMIT and, accordingly, reg 2.72(15)(d) is met.
12. Based on evidence provided, the Tribunal is satisfied that the nominee's annual earnings in relation to the occupation will not be less than either the TSMIT or the AMSR. Therefore, the Tribunal finds that the requirements in reg 2.72(15)(e) and reg 2.72(15)(f) are met.
13. There is no evidence before the Tribunal to indicate that the AMSR is inconsistent with Australian labour market conditions relevant to the nominated occupation and, therefore, the Tribunal finds that the requirements in reg 2.72(15)(g) are met.
14. For the cumulative reasons outlined above, the Tribunal is satisfied that the Company's nomination meets reg 2.72(15) of the Regulations. Accordingly, the decision under review will be set aside and remitted to enable the Department to consider remaining criteria for approval of the nomination. The Company and the representative are encouraged to promptly provide the Department with updated probative evidence to address remaining criteria for approval of the Company's nomination so that the Tribunal can then consider the review application regarding delegate's decision to refuse the nominee's Subclass 482 visa application (Matter No. 2442422).

1. The Tribunal sets aside the decision not to approve the nomination and remits the matter for reconsideration in accordance with the order that the nomination must be taken to have met the following criteria for approval under s 140GB(2) of the Act:
   • reg 2.72(15) of the Regulations.

ATTACHMENT - Extracts from the Migration Regulations 1994

2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

(1) This regulation applies in relation to a person who:

(a) is any of the following:

(i) a standard business sponsor;

(ii) a person who has applied to be a standard business sponsor;

(iii) ...

(iv) ...

(b) under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;

(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

(2) For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

(3) The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

(a) there is no adverse information known to Immigration about the person or a person associated with the person; or

(b) it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

(a) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream - the person is a standard business sponsor; or

(b) ...

(5A) The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

(a) a Subclass 457 (Temporary Work (Skilled)) visa; or

(b) a Subclass 482 (Temporary Skill Shortage) visa;

the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

(7) However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

(a) the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream - the instrument made under subregulation (9) in force at the time the nomination is made; or

(ii) ...; and

(b) the occupation applies to the nominee in accordance with the instrument or work agreement.

(9) The Minister may, by legislative instrument, specify occupations and, for each occupation:

(a) whether the occupation is:

(i) a short term skilled occupation; or

(ii) a medium and long term strategic skills occupation; and

(b) either:

(i) the 6-digit ANZSCO code for the occupation; or

(ii) if there is no 6-digit ANZSCO code for the occupation - a 6-digit code for the occupation; and

(c) if there is no 6-digit ANZSCO code for the occupation - tasks, qualifications and experience for the occupation; and

(d) any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

(i) the person who nominated the occupation;

(ii) the nominee;

(iii) the occupation;

(iv) the position in which the nominee is to work;

(v) the circumstances in which the occupation is undertaken;

(vi) the circumstances in which the nominee is to be employed in the position.

(10) The Minister is satisfied that the position associated with the occupation is:

(10A) However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b) the person is not an overseas business sponsor; and

(c) the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

(d) the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

(e) the person will give the Minister a copy of the contract signed by the employer and the nominee.

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b) the person is an overseas business sponsor; and

(c) the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

(d) the nominee will be engaged only as an employee under a written contract of employment by the person; and

(e) the person will give the Minister a copy of the contract signed by the person and the nominee.

(13) The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) ...

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b) the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

(c) the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

the person has provided evidence to the Minister that the nominee satisfies:

(d) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream - any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

(e) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream - any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b) the Minister is not satisfied that the nominee's annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

(c) the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

(d) the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

(e) the nominee's annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

(f) the nominee's annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

(g) either:

(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

(ii) it is reasonable to disregard any such information.

(a) the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

(ii) it is reasonable in the circumstances to do so; and

(aa) the Minister may disregard the criterion in paragraph (15)(e) if:

(i) under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

(ii) the Minister is satisfied that it is reasonable in the circumstances to do so; and

(b) the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

(17) The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

(18) If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

(a) either:

(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(ii) it is reasonable to disregard any such information; and

(b) if the person is lawfully operating a business in Australia - the person has not engaged in discriminatory recruitment practices.