DWL Tiling Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the approval of a nomination for a Subclass 457 visa. The applicant, DWL Tiling Pty Ltd, sought to have a decision to refuse its nomination for the occupation of Wall and Floor Tiler set aside. The Tribunal, presided over by Katie Malyon, had access to more information than the original decision-maker.

The primary legal issue before the Tribunal was whether DWL Tiling Pty Ltd met the criteria for the approval of its nomination under section 140GB(2) and section 140GBA of the *Migration Act 1958* (Cth), as well as Regulation 2.72 of the *Migration Regulations 1994* (Cth). This involved assessing whether the nomination was made in accordance with the prescribed process, whether the nominator was a standard business sponsor, whether the nominee was correctly identified, and whether the nominated occupation was specified in the relevant instrument. Crucially, the Tribunal also had to determine if the labour market testing requirements under section 140GBA were applicable.

The Tribunal found that DWL Tiling Pty Ltd had satisfied the procedural requirements of Regulation 2.72, including using the approved form, paying the correct fee, and correctly identifying the nominated occupation and the proposed visa holder, Woong Jun Kim. It was satisfied that the company was a standard business sponsor and that there was no adverse information known to Immigration. The nominated occupation, Wall and Floor Tiler (ANZSCO 333411), was specified in the relevant instrument, and the terms and conditions of employment were found to be no less favourable than those for an Australian worker. Regarding the labour market testing requirements under section 140GBA, the Tribunal noted that Ministerial Instrument LIN 20/029, made under the *Korea-Australia Free Trade Agreement*, rendered these requirements inconsistent and therefore not applicable in this case.

Consequently, the Tribunal set aside the original decision to refuse the nomination and substituted a decision approving the nomination.