MIGRATION - application for approval of nomination of position - medium-term stream - diesel motor mechanic - genuine full-time position - original employment contract indicated excessive weekly hours - new employment agreement, organisational chart and other documentation - nominee's skill level, employee classification and tasks of position - difficulties in finding qualified candidates in remote location - decision made without hearing necessary - decision under review set aside and remitted

Administrative Review Tribunal Act 2024 (Cth), ss 79(1), 106(3)

Migration Act 1958 (Cth), ss 140GB, 140GBA, 348A(1)

Migration Regulations 1994 (Cth), r 2.72(10)

1. This is an application for review of a decision made by a delegate of the Minister on 6 June 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 applied for approval of the nomination for the occupation of Diesel Motor Mechanic on 26 April 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 three 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 by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(b) requiring the position associated with the occupation to be a full-time position. The delegate considered that the information before them including the nominee's employment contract indicated excessive weekly hours not consistent with the National Employment Standards (NES) and found that the position cannot be properly described as fulltime. The delegate also considered that it was not reasonable in the circumstances of the case to disregard the fulltime requirement under reg 2.72(10A).
4. The applicant applied for review of the delegate's decision to the Tribunal on 24 June 2024 and provided a copy of the decision record with their review application. The applicant was represented in relation to the review.
5. On 19 November 2025, the Tribunal gave directions, by an order made under s 79(1) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act), that the applicant provide to the Tribunal specific information and evidence set out in the order. An extension of time was granted on the applicant's request, and the Tribunal received the relevant information on 12 January 2026.

1. Section 106(1) of the ART Act provides that the Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of the circumstances in subsections (2) to (5) applies. Relevantly in this case, s 106(3) of the ART Act applies if the only parties to the proceeding are the applicant and a non-participating party; and the decision is wholly in favour of the applicant; and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
2. In this case, the only parties to the proceeding are the applicant and the Minister who is a non-participating party.[1] Accordingly, s 106(3)(a) is met.
3. The issue for determination in the present case is whether the applicant meets reg 2.72(10), being one of the criteria for approval of the nomination of an occupation and the reason for the delegate's refusal.
4. The Tribunal has considered the following relevant material before it:
   1. The Departmental file including the nomination application submitted online on 26 April 2024; a copy of the employment agreement between the applicant and Mr Somede Angco Ancheta, the nominee, dated and signed 20 March 2024; a position description for the nominated position and the applicant's organisation chart; copies of job advertisements for 'Diesel Motor Mechanic' as evidence of market salary rate research; and evidence of labour market testing for the nominated position.
   2. The applicant's submissions to the Tribunal including a copy of a new employment agreement signed between the applicant and the nominee executed in January 2026; the nominee's payslips for the period between 12 December 2025 and 9 January 2026; a copy of the nominee's payment summary for the financial year ending 30 June 2025; a copy of the nominee's payroll record for the period between 1 July 2025 and 5 January 2026; a copy of another employee's payslip for the period between 30 November 2025 and 12 December 2025; an extract of wages classification from the Vehicle Repair, Services and Retails Award 2020; an updated organisation chart of the applicant's business; and submissions in support of the nomination.
5. Having reviewed the available material in this matter, the Tribunal considers that the issue for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding, and that for the reasons set out below, the decision is wholly in favour of the applicant. Accordingly, the Tribunal finds ss 106(3)(b)(i) and 106(3)(c) are met and it has decided to proceed to a decision without a hearing.

1. The issue before the delegate was whether the applicant met the requirement that the position association with the occupation is a full-time position in accordance with reg 2.72(10)(b), or it was reasonable in the circumstances to disregard this requirement under reg 2.72(10A). This is a sub-criterion in reg 2.72(10) which also requires the position associated with the nominated occupation to be genuine (reg 2.72(10)(a)). The Tribunal has considered both limbs of reg 2.72(10) in this present case.
2. For the following reasons, the Tribunal has decided to set aside the decision under review and remit the matter for reconsideration.
3. The information before the Tribunal indicates that the applicant, Plum Oak Pty Ltd (ABN 91 468 462 378), operates bus charter services in Fitzroy Crossing, WA. The applicant employs a large number of bus drivers who are Australian citizens, as well as an accountant in administration and 6 staff in the motor mechanic workshop, headed by 3 directors who manage and supervise operational aspects of the applicant's business including the mechanic workshop, finance and contracts. In the mechanic workshop, the applicant currently employs 2 'Heavy Diesel Mechanics' including the nominee, an Australian citizen apprentice mechanic and 2 Australian citizen all-rounder maintenance staff.
4. The current employment contract in effect for the nominated position is dated 28 November 2025 and was executed by the applicant and the nominee in January 2026. The relevant clauses of this contract states that the ordinary hours of work in the nominated position of 'Diesel Motor Mechanic' are 38 hours per week, plus 5 hours guaranteed overtime per week (clause 3.1) and the guaranteed annual earning on the basis of these hours is AUD 77,672 plus superannuation (clause 4). The representative submits that the annual salary of $77,672 has been calculated on the following basis:

Base hours: 38 hours per week at $33.25 per hour = $65,702.00 p.a.

Overtime hours: 5 hours per week at $49.875 per hour = $11,970 p.a.

Total annual salary: $65,702 + $11,970 = $77,672.00 p.a.

1. The nominee's recent payslips reflect the above hours and rates. The payslip of the other Diesel Motor Mechanic currently employed by the applicant also reflects the same hours and rates of pay for the same period.
2. Although the nominee's employment agreements with the applicant refer to 'Vehicle Manufacturing and Repair Retail Award 2010', the Tribunal accepts that the relevant applicable award for the occupation of Diesel Motor Mechanic is the 'Vehicle Repair, Services and Retail Award 2020'[2] (the Award). The Tribunal accepts that the relevant skill level and employee classification for the nominated position in accordance with the Award is Vehicle RS&R industry employee - tradesperson or equivalent Level 1 or 2 at wage group level R6 or R7.[3] For tradesperson level 2 at wage group level R7, the Award states the minimum hourly rate at $30.76. Clause 24 of the Award provides the applicable overtime rate calculation for hours worked outside the ordinary hours, which relevantly in the case of the applicant's nominated position is at 150% of the ordinary hourly rate for overtime hours worked on weekdays and Saturdays. The National Employment Standards provide that maximum hours of work for a full-time employee are considered as 38 hours per week plus reasonable additional hours.
3. The Tribunal has considered the copies of job advertisements for Diesel Motor Mechanic submitted by the applicant to the Department and accepts that it is considered industry standard for this occupation to work reasonable overtime in Australia.[4] In this case, the nominated position's weekly hours are 38 hours as ordinary hours and additional 5 hours at the applicable overtime rate. The evidence before the Tribunal indicates that the nominee who has been occupying the nominated position at the applicant's business has agreed to the terms of employment which are more beneficial than the Award terms, has been working the agreed hours and is being remunerated accordingly including the applicable overtime rates. Having regard to the totality of the information before it, the Tribunal does not consider the nominated position's work hours are inconsistent with the National Employment Standard nor that the nominee would be expected to work excessive overtime hours on a regular basis.
4. Accordingly, the Tribunal is satisfied based on the totality of the evidence before it that the position associated with the occupation is a full-time position.
5. The Tribunal has also considered whether the position associated with the nominated occupation of Diesel Motor Mechanic in the applicant's business is genuine as required under reg 2.72(10)(a). In this regard, the Tribunal has carefully reviewed the position description of the nominated position against the tasks set out for the occupation of 321212 Diesel Motor Mechanic in ANZSCO.[5]
6. ANZSCO describes the responsibility of a Diesel Motor Mechanic as 'maintains, tests and repairs diesel motors and mechanical parts of trucks, buses and other heavy vehicles such as transmissions, suspension, steering and brakes.' The tasks description for ANZSCO Unit Group 3212 Motor Mechanics provide further guidance and includes the following:
   • detecting and diagnosing mechanical and electrical faults in engines and parts
   • dismantling and removing engine assemblies, transmissions, steering mechanisms and other components, and checking parts
   • repairing and replacing worn and defective parts and reassembling mechanical components, and referring to service manuals as needed
   • performing scheduled maintenance services, such as oil changes, lubrications and engine tune-ups, to achieve smoother running of vehicles and ensure compliance with pollution regulations
   • reassembling engines and parts after being repaired
   • testing and adjusting mechanical parts after being repaired for proper performance
   • diagnosing and testing parts with the assistance of computers
   • may inspect vehicles and issue roadworthiness certificates or detail work required to achieve roadworthiness
   • may respond to vehicle breakdown service calls
7. The applicant's position description for the nominated position sets out in detail the various technical maintenance, diagnostic and repairing tasks closely reflecting the above tasks. It is clear from the information before the Tribunal including the organisation chart that these diesel engine mechanical maintenance and repairs are critical to the applicant's business of bus charter and passenger transport services. The Tribunal also accepts the representative's submission, which is supported by the applicant's labour market testing evidence in the Departmental file, that the applicant has had difficulties finding qualified candidates for the nominated position due to the remote location of the business in Fitzroy Crossing in northern Western Australia.
8. The Tribunal is satisfied that the detailed position description for the nominated position in the applicant's business, as apparent from the nomination application, the position description statement and copies of the applicant's online job advertisements for the position, include a majority of the tasks for the nominated occupation as described in ANZSCO. The Tribunal is also satisfied on the available information that the position fits within the operational context and activities of the applicant's business.
9. For the above reasons, the Tribunal is satisfied that the position associated with the nominated occupation of Diesel Motor Mechanic is a genuine position in the applicant's business and that it is a full-time position which has been and is occupied by the nominee to perform the duties of the Diesel Motor Mechanic as required by the applicant's business to fill its skill shortage. Accordingly, the Tribunal finds that the requirements of regs 2.72(10)(a) and (b) are met.
10. The Tribunal is satisfied that the applicant meets reg 2.72(10) for the nomination. Accordingly, the decision under review will be set aside and remitted for reconsideration.

1. The Tribunal sets aside the decision under review and remits the application for reconsideration in accordance with the order that the applicant's nomination meets reg 2.72(10) of the Migration Regulations 1994 (Cth).

Representative for the Applicant: Ms Michelle Frosh

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.

[1] Section 348A(1) of the Act provides that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act.

[2] Vehicle Repair, Services and Retail Award 2020 [MA000089] - Fair Work Ombudsman: see clause 4, which provides the Award's coverage including that it covers employers throughout Australia of employees engaged in the vehicle repair, services and retail industry.

[3] See Schedule A of the Award at A.1.5 and A.1.6 for the indicative skill level and the occupation classification, and Part 3 of the Award at clause 16.2 for the applicable minimum weekly rate for full-time employee and minimum hourly rates.

[4] See also Diesel Motor Mechanics | Jobs and Skills Australia which indicates average full-time hours worked per week by diesel motor mechanics are 46 hours.

[5] Australian Bureau of Statistics (2022), 3212 Motor Mechanics, ABS Website, accessed 19 February 2026.