Bacceney Pty Ltd (Migration)

This matter concerned an application by Bacceney Pty Ltd for approval of a nomination for a position. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for approval of the nomination, specifically in relation to labour market testing and other requirements under the Migration Regulations 1994. The Tribunal had invited the applicant to provide updated evidence demonstrating compliance with all relevant criteria, including those under regulation 2.72 and section 140GBA of the Act.

The primary legal issues before the Tribunal were whether the applicant had satisfied the labour market testing requirements as stipulated by section 140GBA of the Migration Act 1958, and whether the nomination met all other prescribed criteria under regulation 2.72 of the Migration Regulations 1994. Section 140GBA mandates that labour market testing be undertaken to demonstrate the unavailability of a suitably qualified Australian citizen or permanent resident for the nominated position, unless specific exemptions apply. Regulation 2.72 outlines a comprehensive set of criteria that must be met for the approval of a nomination, including aspects related to the sponsor's status, the genuineness of the position, and salary and employment conditions.

The Tribunal considered the documentary evidence provided by the applicant, including business activity statements, previous nomination approvals, and employment contracts. It noted that section 140GBA requires specific evidence relating to labour market testing, undertaken within a prescribed period and in a determined manner. Furthermore, the Minister must be satisfied that no suitably qualified Australian is readily available. The Tribunal also examined the various criteria within regulation 2.72, such as the requirement for the position to be genuine and full-time, and for the nominee's annual earnings to meet or exceed the market salary rate and the temporary skilled migration income threshold. Ultimately, the Tribunal was not satisfied that the applicant had met the applicable criteria for the nomination to be approved.

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