Majato Pty Ltd and Portside Nominees (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by Majato Pty Ltd and Portside Nominees (Migration) concerning the approval of a nominated position under the medium-term stream for a Motor Mechanic (General). The core of the dispute revolved around whether the applicant had satisfied the labour market testing requirements for the nominated position.

The Tribunal was required to determine if the applicant met the criteria for the approval of the nomination, specifically focusing on the labour market testing obligations as stipulated by section 140GBA of the Migration Act 1958 and instrument LIN 18/036. This involved assessing whether the recruitment efforts undertaken by the applicant demonstrated that no suitably qualified and experienced Australian citizen or permanent resident was readily available to fill the position, and whether the evidence provided met the prescribed requirements for such testing.

The Tribunal's reasoning centred on the interpretation of the labour market testing requirements. It noted that section 140GBA mandates such testing unless specific exemptions apply, and that the testing must be conducted within a prescribed period, as defined by LIN 18/036, which is the four months preceding the nomination application lodgement. The Tribunal found that the applicant had not provided sufficient evidence to satisfy these requirements, including details of attempted recruitment and advertising. The Tribunal also noted that the applicant had not responded to an invitation under s 359(2) of the Migration Act 1958, and declined an indefinite adjournment of the review.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal was not satisfied that the applicant had met the applicable criteria for the nomination to be approved.