THE HOUR GLASS (AUSTRALIA) PTY LTD (Migration)

This matter concerned an application for approval of a nomination for a position under the short-term stream of the Temporary Skill Shortage (TSS) visa program. The applicant, THE HOUR GLASS (AUSTRALIA) PTY LTD, sought to nominate Mr Shu-Hao Chang for a position. The decision under review was the refusal of this nomination by the Department of Home Affairs. The case was heard by Member Andrew McLean Williams of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had met the criteria for approval of the nomination, specifically concerning the labour market testing requirements stipulated in section 140GBA of the Migration Act 1958. The Tribunal was required to determine if the applicant had undertaken labour market testing in the prescribed manner and if the evidence provided demonstrated that no suitably qualified and experienced Australian citizen, permanent resident, or eligible temporary visa holder was readily available to fill the nominated position.

The Tribunal found that the applicant had failed to satisfy the labour market testing requirements. This was because a contract of employment with the nominee, Mr Shu-Hao Chang, was signed on 19 November 2019, which indicated the position was filled by the nominee. Subsequently, the applicant advertised the vacancy in December 2019 and January 2020. The Tribunal reasoned that the contract being operative before the advertising period meant the labour market testing was not conducted in good faith, as the position was already filled. Furthermore, the advertisements themselves were found to lack sufficient detail regarding the skills required for the nominated position.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination. The applicant had not demonstrated that they met the mandatory labour market testing criteria, which is a prerequisite for the approval of such nominations.