1507799 (Migration)

The applicants sought approval for a nomination of the occupation of Cook, in relation to the nominee Jirawadee Rukbua. The Administrative Appeals Tribunal was required to determine whether the applicants met the criteria for approval of this nomination, specifically considering the requirements of regulation 2.72 and section 140GBA of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicants had satisfied the labour market testing condition as mandated by section 140GBA. This condition requires a standard business sponsor nominating an occupation to demonstrate that no suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position, unless specific exemptions apply. The Tribunal had to assess if the evidence provided by the applicants regarding their recruitment attempts met the prescribed requirements, including the timing of the testing and the nature of the evidence submitted.

The Tribunal reasoned that to satisfy the labour market testing condition, the nomination must be accompanied by specific evidence of recruitment attempts, such as details of advertising, advertising fees, and information about any Australian citizen or permanent resident redundancies in the preceding four months. The Minister must also be satisfied that no suitable Australian candidate is readily available. The applicants stated that labour market testing was conducted on four occasions between October and December 2014, with advertisements placed through Asia Pacific Advertising & Marketing Pty Ltd. However, the Tribunal found that the provided evidence, including the advertisements and tax invoices, was insufficient to demonstrate that the labour market testing condition had been met to the required standard.

Consequently, the Tribunal was not satisfied that the applicants had met the applicable criteria for the nomination to be approved and therefore affirmed the decision to refuse the nomination.