Sheetal Indian Restaurant Pty Ltd (Migration)

This matter concerned an appeal by Sheetal Indian Restaurant Pty Ltd against a decision to refuse the approval of a nominated position for a cook. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the approval of the nomination under the Migration Regulations 1994.

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 and associated regulations. This involved assessing whether the employer had adequately demonstrated that no suitably qualified and experienced Australian citizen or permanent resident was readily available to fill the nominated cook position. The Tribunal also considered the general criteria for the approval of a nomination under regulation 2.72 of the Migration Regulations 1994.

The Tribunal affirmed the decision to refuse the nomination. It found that the applicant had not provided sufficient evidence to satisfy the labour market testing requirements. Specifically, the Tribunal noted that while advertising had been undertaken, the evidence presented did not conclusively demonstrate that a thorough test of the Australian labour market had been conducted to ascertain the availability of suitable local candidates. The Tribunal applied the principles outlined in section 140GBA, which mandates that employers must test the Australian labour market to show that a position cannot be filled by an Australian citizen or permanent resident, and that the nomination must be accompanied by specific evidence of these recruitment efforts.

Consequently, the Tribunal was not satisfied that the applicant met the applicable criteria for the nomination to be approved and therefore affirmed the original decision to refuse the nomination.