1503117 (Migration)

The Administrative Appeals Tribunal considered an application by a sponsor seeking approval for the nomination of a position for an Electrician (General) for a nominee, Anthony Phipps. The core dispute revolved around whether the applicant had met the necessary criteria for the nomination to be approved, specifically concerning labour market testing requirements.

The Tribunal was required to determine if the applicant had satisfied the labour market testing condition as stipulated by section 140GBA of the relevant legislation. This condition mandates that a standard business sponsor must test the Australian labour market to ascertain the availability of suitably qualified Australian citizens or permanent residents for the nominated position, unless specific exemptions apply. The Tribunal also had to consider whether the applicant had provided the requisite evidence of recruitment attempts and information regarding any Australian redundancies in relevant occupations.

The Tribunal reasoned that section 140GBA, read in conjunction with Legislative Instrument IMMI 13/136, requires that labour market testing be undertaken and evidenced at the time of lodging the nomination application. The applicant had stated in their nomination lodged on 6 January 2015 that no labour market testing had been conducted. Despite the Department's subsequent communication on 5 February 2015 explaining the requirement for testing and the need to provide evidence of recruitment attempts, the Tribunal found that it was not possible to provide this information after the lodgement of the nomination. Consequently, the Tribunal was not satisfied that the applicant had met the applicable criteria for the nomination to be approved.

The Tribunal affirmed the decision under review to refuse the nomination.