DS & SA Young Pty Ltd (Migration)

This matter concerned an appeal to the Tribunal regarding a decision not to approve a nomination for a Subclass 457 visa. The applicant, DS & SA Young Pty Ltd, sought to nominate an arborist. The core of the dispute revolved around whether the applicant had met the necessary criteria for the nomination to be approved, particularly concerning labour market testing and the genuineness of the nominated position.

The Tribunal was required to determine if the applicant had satisfied the requirements of regulation 2.72 of the Migration Regulations 1994, specifically regarding the identification of the visa holder, the genuineness of the nominated position, and the fulfilment of labour market testing obligations under section 140GBA of the Act. The Tribunal also considered whether the nominee held a Subclass 457 visa or had an associated review application that was undetermined, and whether the applicant had responded to the Tribunal's correspondence.

The Tribunal's reasoning focused on several deficiencies in the nomination. Firstly, it was not satisfied that the nominee would work in the nominated occupation, as the nominee did not hold a Subclass 457 visa or have an associated review application pending. Secondly, the Tribunal found a lack of contemporary evidence to support the genuineness of the position, noting the paucity of evidence that the applicant continued to operate a business genuinely requiring the nominated occupation. Finally, the Tribunal concluded that the applicant had failed to meet the labour market testing requirements, as there was insufficient evidence of recruitment activity to demonstrate that a suitably qualified Australian citizen or permanent resident was not readily available to fill the position.

The Tribunal affirmed the decision not to approve the nomination.