The Trustee for the Molloy Family Trust (Migration)

This matter concerned an application by The Trustee for the Molloy Family Trust for approval of a nomination for a visa. The dispute centred on whether the applicant had met the relevant labour market testing requirements under section 140GBA of the Migration Act 1958 (Cth). The decision was made by Penelope Hunter, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the labour market testing condition prescribed by section 140GBA of the Act, which requires an employer to demonstrate that no suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the nominated position. This testing must be conducted within a prescribed period and in a manner specified by legislative instrument, and the nomination must be accompanied by specific evidence, including information about any relevant redundancies.

The Tribunal found that while the applicant was an approved standard business sponsor, they had failed to meet the labour market testing requirements. The nominated position of Cook was not subject to any exemptions under the Act, and the location of the business did not qualify for a major disaster exemption. Crucially, the Tribunal determined that there was no evidence satisfying the prescribed manner of labour market testing as required by the relevant instrument. Consequently, the Tribunal concluded that the applicant had not met the criteria for approval of the nomination.

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.