THE AGNCY PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by THE AGNCY PTY LTD concerning the approval of a nomination for a position under the short-term stream of a visa program. The dispute centred on whether the applicant met the necessary criteria for the nomination to be approved, specifically in relation to labour market testing.

The primary legal issue before the Tribunal was to determine if the applicant had satisfied the labour market testing requirements as mandated by section 140GBA of the Migration Act 1958 (Cth) and the relevant legislative instrument, IMMI: LIN 18/036. This involved assessing whether evidence of testing the Australian labour market had been provided, demonstrating that no suitably qualified and experienced Australian citizen or permanent resident was readily available to fill the nominated position, and whether any relevant redundancies or retrenchments had been considered.

The Tribunal's reasoning focused on the absence of evidence presented by the applicant to satisfy the labour market testing requirements. It noted that no information had been provided regarding the undertaking of labour market testing within the prescribed period or in the manner specified by the relevant instrument. Furthermore, there was no evidence to demonstrate the availability of Australian workers for the nominated role or details of any redundancies. The Tribunal also observed that the applicant had not responded to an invitation to provide updated and current information relevant to the assessment. Consequently, the Tribunal was not satisfied that the applicant met the applicable criteria for the nomination to be approved.

The Tribunal affirmed the decision under review to refuse the nomination.