2 Ryan Place Pty Ltd (Migration)

The Administrative Appeals Tribunal, constituted by Member Karen McNamara, considered an application by 2 Ryan Place Pty Ltd for the approval of a nomination for a café or restaurant manager position under the short-term stream of the Temporary Skill Shortage visa program. The core of the dispute revolved around whether the applicant had met the mandatory labour market testing requirements for the nomination.

The Tribunal was required to determine if the applicant had satisfied the criteria for the approval of the nomination, specifically focusing on the labour market testing obligations as stipulated in section 140GBA of the Migration Act 1958 and the associated legislative instrument LIN 18/036. This involved assessing whether the applicant had demonstrated that no suitably qualified and experienced Australian citizen or permanent resident was readily available to fill the nominated position, and whether the testing was conducted within the prescribed timeframe and in the correct manner.

The Tribunal's reasoning centred on the fact that the applicant had stated in their application to the Department that no labour market testing had been undertaken, claiming an exemption applied. However, the Tribunal found that for nominations lodged after 18 March 2018, no occupations were specified for the purpose of skill and occupational exemptions, rendering the applicant's claim invalid. As the nomination was lodged on 29 March 2019, it was not subject to such an exemption. The Tribunal noted that it had invited the applicant to provide further information but received no response.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination, finding that the applicant had failed to meet the applicable criteria, particularly the mandatory labour market testing requirements.