A tribunal read the pay figure off the award alone - the court says that missed the point entirely
A carpenter's visa is heading back for a second look after a court found the Tribunal measured his pay against the wrong benchmark.
The Federal Circuit and Family Court of Australia ruled on August 6, 2026 that the Administrative Appeals Tribunal got the law wrong when it knocked back a small building company's bid to sponsor an overseas carpenter on a subclass 482 Temporary Skill Shortage visa. The judge found a jurisdictional error - the kind of legal mistake that lets a court unwind a decision - in the Tribunal's reasoning.
The whole case turned on one number: the annual market salary rate. That is the pay figure a sponsoring employer must work out and back up with evidence, and it exists to stop overseas workers being used to undercut Australian wages.
The employer had put the carpenter's salary at $70,000 a year. To support it, the business leaned on the Joinery and Building Trades Award and then reached for outside evidence - job advertisements and salary surveys from PayScale, Glassdoor, Indeed, Jora and Seek - arguing the figure reflected the worker's experience and a pandemic-driven shortage of skilled tradespeople.
The Tribunal rejected the approach. It accepted the award applied and that the carpenter was a Level 5 worker, with an award minimum for ordinary hours stated as $46,774 a year. But it decided that once an award covers the role, the market rate must be drawn from that award and nothing else - and on that footing it treated the award minimum as the market rate itself. The outside job ads and surveys, it said, were off the table. With the rate set at the award minimum, the Tribunal found it fell below the income threshold sponsors have to meet, and refused the nomination. The worker and his wife lost their visa applications as a direct result, because the visa hinged on the nomination being approved.
Judge Zipser saw it differently. The award, he found, sets only a minimum for ordinary hours - not the actual earnings of an equivalent Australian worker in that job and location. Workers routinely negotiate above the minimum, the judgment noted, and real pay moves with experience, location and how tight the labour market is. There was no clause in this award that fixed anything higher than the floor.
From there the reasoning followed: when the award only sets a minimum, you cannot read the market rate off the award alone. Extra material may be needed - and that can include the very job ads and surveys the Tribunal had excluded. Shutting them out, the Court held, was a misreading of the rules, and it flowed through to the Tribunal's later finding that the pay fell short of the threshold.
The judge was candid that the question was unsettled. No court had ruled on how these salary-rate provisions work, he observed, and three earlier Tribunal decisions had approached the same issue in three different ways.
For HR, mobility and talent teams, the message is practical. When an award covers a sponsored role, treat the award minimum as the floor, not the answer. If you are paying an experienced hire above that floor - which is normal - the nomination has to show how you landed on the number. That means pairing the award classification with market evidence, spelling out the reasoning, and keeping the advertisements and survey data on file and clearly labelled. On the facts here, it was the strength and clarity of the salary justification that the whole dispute turned on.
The Court has signalled it intends to quash both Tribunal decisions and remit them to the Administrative Review Tribunal, which replaced the AAT in October 2024, for a fresh decision. Final orders and costs are listed for argument on August 19, 2026.
