Che Fammi Pty Ltd ATF Che Fammi Discretionary Trust (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Che Fammi Pty Ltd ATF Che Fammi Discretionary Trust for approval of a nomination for a Subclass 482 visa. The delegate had refused to approve the nomination on the grounds that the applicant had not undertaken labour market testing as required by section 140GBA of the Migration Act 1958 (Cth). The applicant contended that labour market testing was not required, or that it had provided sufficient information to satisfy this requirement.

The primary legal issue before the Tribunal was whether the applicant had met the criteria for the approval of the nomination, specifically concerning the labour market testing requirements. The Tribunal was required to determine if the applicant had satisfied section 140GBA of the Act, which mandates labour market testing for certain visa nominations, and whether the information provided by the applicant adequately addressed this criterion. Additionally, the Tribunal considered whether it had the power to proceed to a decision without further information, given the applicant's failure to respond to a request for information within the prescribed timeframe.

The Tribunal affirmed the delegate's decision to refuse the nomination. It found that the applicant had explicitly stated in its application that it had not undertaken labour market testing and had provided no documentary evidence to support any claim that such testing was unnecessary or had been conducted. The Tribunal noted that while an extension of time was granted for the applicant to provide further information, the applicant failed to do so. Citing section 359C and 360(3) of the Act, the Tribunal concluded that it was entitled to proceed to a decision without further steps to obtain comments, and that the applicant had not met the labour market testing requirements under section 140GBA.