Yooralla (Migration)

This matter concerned an application for approval of a nomination of a position, brought by Yooralla (the applicant), which was heard by the Administrative Appeals Tribunal. The applicant sought to nominate a position, but claimed an exemption from the usual labour market testing requirements. The core of the dispute revolved around whether the applicant met the criteria for approval of the nomination, specifically concerning the labour market testing obligations under section 140GBA of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the applicant had satisfied the labour market testing requirements or was otherwise exempt. Section 140GBA mandates that a person nominating an occupation must fulfil labour market testing unless specific exemptions apply, such as those related to major disasters or skill shortages, or if the Minister has determined it would be inconsistent with an international trade obligation. The applicant asserted an exemption based on being a not-for-profit organisation with an enterprise bargaining agreement and the position having already undergone market testing.

The Tribunal found that the applicant's claimed basis for exemption was not a prescribed category under the Act. The applicant provided no evidence of labour market testing having been undertaken, nor did they fall within any of the statutory exemptions. The Tribunal noted that the applicant had not provided updated or current information in response to an invitation from the Tribunal. Consequently, the Tribunal concluded that the applicant had not met the labour market testing condition as required by section 140GBA.

As the applicant failed to satisfy the labour market testing requirements, and no other exemptions were applicable, the Tribunal was not satisfied that the applicant met the criteria for the nomination to be approved. Accordingly, the Tribunal affirmed the original decision to refuse the nomination.