IDENTITY STUDIO (AUST) PTY LTD (Migration)

This matter came before the Administrative Appeals Tribunal (AAT) concerning the approval of a nomination by Identity Studio (Aust) Pty Ltd. The dispute centred on whether the applicant met the criteria for approval of the nomination, specifically relating to labour market testing requirements. The Tribunal was tasked with reviewing the delegate's decision to refuse the nomination.

The primary legal issue before the Tribunal was whether the applicant had satisfied the labour market testing requirements as stipulated by section 140GBA of the Migration Act 1958 (Cth) and the relevant legislative instrument, LIN 18/036. This involved determining if the job advertisements were placed within the prescribed four-month period prior to the nomination date and if the advertisements accurately reflected the salary on offer. The Tribunal also considered whether the applicant was exempt from these requirements under sections 140GBB or 140GBC of the Act.

The Tribunal affirmed the delegate's decision, finding that the applicant had not met the labour market testing condition under section 140GBA. The Tribunal noted that the nomination date was 22 April 2020 and that the applicant was not exempt from the labour market testing requirements. The Tribunal concluded that as the applicant did not satisfy this essential condition, it was not satisfied that the applicant met the criteria for approval of the nomination under section 140GBA. Consequently, the Tribunal did not proceed to assess the applicant against the other prescribed criteria in regulation 2.72 of the Migration Regulations 1994. The Tribunal therefore affirmed the decision not to approve the nomination.