B & M Body Works Pty Ltd (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered an application by B & M Body Works Pty Ltd (the applicant) for approval of a nomination for a position as a panel beater. The decision under review was the refusal of this nomination. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination, specifically focusing on the labour market testing requirements.

The central legal issue was whether the applicant had satisfied the labour market testing obligations mandated by section 140GBA of the Migration Act 1958 (Cth) and the relevant 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 nomination was accompanied by the prescribed evidence of such testing. The Tribunal also considered whether any exemptions to labour market testing applied.

The Tribunal found that labour market testing was applicable to the nomination as there was no evidence of any relevant exemptions or international trade obligations that would negate this requirement. The Tribunal noted that the applicable instrument, LIN 18/036, required the nominated position to be advertised through specific channels, such as national recruitment websites, print media, radio, or the sponsor's website, and that evidence of this advertising must accompany the nomination. As the applicant had not provided evidence of having undertaken the required labour market testing in the prescribed manner, nor responded to the Tribunal's invitation to provide further information, the Tribunal was not satisfied that the applicant met the applicable criteria for the nomination to be approved.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.