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Tribunal: Member A Ducrou

The AAT has set aside and substituted its decision for one made by a delegate of the Minister for Immigration (the Department). The AAT accepted an applicant employer’s nomination of Chef because it met essential criteria related to spending on staff training.

The applicant had applied for an employer sponsored skilled visa program under the temporary residence transition nomination stream.[1] Under this stream an applicant must show it has met certain staff training criteria during the period of its most recent sponsorship approval.

Training benchmarks are contained within a legislative instrument,[2] which allows the Minister to make laws on matters of detail with the authority of migration law. At the time (the instrument has now been superseded), the applicant was required to spend above a threshold amount on staff training. The applicant needed to prove they spent an amount of money either:

  1. with an industry training fund (operating in the same industry as the business) that was equal to two per cent of its payroll (benchmark A), or
  2. providing training to its employees that was equal to one per cent of its payroll (benchmark B).

The applicant provided the AAT with information on how it met all the criteria for the nomination, including the one on staff training. The applicant asserted it met the training requirements under benchmark B as it employed a full-time training officer. The AAT was satisfied the applicant did employ a qualified trainer and training staff was a key part of her role.

The AAT also calculated the applicant’s payroll and used this evidence to establish the applicant met benchmark B, having spent more than one per cent of the business payroll on the training officer’s salary.

Read the full decision


[1] The Migration Regulation 1994 (Cth), r.5.19(3).

[2] Legislative Instrument IMMI 13/030