PHENOMENON CONSTRUCTION PTY LTD (Migration)

The Administrative Appeals Tribunal considered a migration matter involving Phenomenon Construction Pty Ltd, which sought approval for a nomination for a Subclass 457 visa. The core of the dispute concerned whether the nominated position of Wall and Floor Tiler was genuine, particularly in light of concerns about self-sponsorship, and whether labour market testing was required.

The Tribunal was required to determine if the nominated position was genuine, notwithstanding potential indicia of self-sponsorship, and to ascertain whether the labour market testing requirements under s.140GBA of the Migration Act 1958 (Cth) were applicable in this instance.

The Tribunal found that while there were some indicators that might suggest a lack of genuineness, these were outweighed by evidence of a genuine need for the position. Crucially, the Tribunal determined that the labour market testing requirements were not applicable due to an exemption provided under the Korea-Australia Free Trade Agreement. Consequently, the Tribunal set aside the original decision not to approve the nomination and substituted a decision approving the nomination.