20 Plus Cosmetic Pty Ltd (Migration) - [2024] ARTA 573

20 PLUS COSMETIC PTY LTD (MIGRATION) [2024] ARTA 573 (18 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:20 Plus Cosmetic Pty Ltd
Respondent:  Minister for Home Affairs
Tribunal Number:  2214004

Tribunal:General Member A. Dronjic
Place:Melbourne
Date: 18 November 2024
Decision:The Tribunal affirms the decision under review.

Statement made on 18 November 2024 at 2:30pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – short-term stream –massage therapist – specified occupation – inapplicability condition – position not based in therapeutic setting – nominee has never worked at business – application for student visa in progress, and part-time employment planned – condition also excludes positions which are not full-time – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(8)(b), 2.73
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 October 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval of the nomination on 9 July 2022. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream.
Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(8), which prescribes that: the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing made under reg 2.79(9) in force at the time the nomination is made; and the occupation applies to the nominee in accordance with the instrument.
Based on the evidence provided to the Department, the delegate concluded that the position was in a retail setting and not based in a therapeutic setting. As such, the delegate found that the position is excluded from being approved under reg 2.72(8) by the inapplicability condition (caveat) set out in Item 12 of the LIN 19/048.
The applicant applied to the Tribunal, on 20 September 2022, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 12 August 2024, the Tribunal wrote to the applicant inviting the authorised person to provide updated and current information addressing the requirements of reg 2.72 of the Regulations.
On 26 August 2024, the applicant’s representative submitted documentary evidence in support of the application.
On 7 October 2024, the Tribunal wrote to the applicant advising that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 12 November 2024. With the hearing invitation letter, the Tribunal invited the applicant to provide the following documentary evidence:
·     Financial Statements for the year ended 30 June 2024 (if the latest financials are not lodged with the ATO – please provide extract an from MYOB or other accounting software that includes a profit and loss statement and balance sheet);
·     The nominee’s Resume;
·     Updated organisational chart listing names, occupation, citizenship status of employees and stating whether they are part-time or full-time employees; and
·     A statement explaining if the nominee ever worked in any capacity for the nominating business and if so, copies of her PAYG summaries and ATO assessment notices for the nominee from the financial years 2020/21 to 2023/24.
On 6 November 2024, the applicant’s representative submitted:
·     A copy confirmation of enrolment letter from Australasia International school dated 28 October 2024 as evidence that the nominee, Ms Ling is currently enrolled as a full fee-paying International Student in Diploma of Remedial Massage. The course commencement day was 15 July 2024 and end date is 21 December 2025;
·     A copy statement of results related to the nominee’s study of Diploma of Remedial Massage dated 6 November 2024;
·     A copy of the nominee’s work reference letter dated 27 April 2022, issued by Asia Priority Healthcare Hong Kong, as evidence of the nominee’s employment as a senior massage therapist between September 206 and February 2022;
·     The nominee’s Resume; and
·     A copy of the nominator’s Financial Statements for the year ended 30 June 2024.
Mr Mao appeared via video link before the Tribunal on 12 November 2024 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
Mr Mao is company director and shareholder of the nominating business. He is employed on a part-time basis as Managing Director and draws an annual salary of $24,000. He oversees day-to-day business operations, including the recruitment of new employees.
The business currently employs nine employees, including Mr Mao. It employs five beauticians, two massage therapists in a permanent part-time role and one casual massage therapist. Both permanent part-time massage therapists are Australian permanent residents and are paid an hourly rate of $32.00.
The nominee, Ms Ling, never worked at the nominating business. Mr Mao gave evidence that, after the business completed labour market testing for the position in March 2022, Ms Ling was interviewed by him and was chosen as the best candidate. He further stated that three more applicants were interviewed at the time. Two of them were Australian permanent residents and they were not offered the position because of insufficient work experience. The third candidate did not have good English language skills. Mr Mao was aware at the time that Ms Ling was not permitted to work in Australia.
When questioned if the business attempted to employ any other person to this position since the Department refused the nomination application in September 2022, Mr Mao stated that the business advertised in January and April 2024 in the Chinese community papers for this position. He acknowledged that no supporting evidence was provided in support of this claim.
When questioned about what the nominee is currently doing in Australia and when he last saw Ms Ling, Mr Mao stated that Ms Ling is living in the Sydney CBD and is currently studding a Diploma of Remedial Massage. Last month she came to the business premises. Mr Mao does not know how Ms Ling supports her stay in Australia. He gave evidence that, according to his understanding, she applied for a student visa some 6 to 12 months ago and is still awaiting the outcome of that application.
The Tribunal noted that if Ms Ling is granted a student visa, she will not be permitted to work on a full-time basis by the conditions that will be imposed on her student visa. Mr Mao stated that he is aware of the work restrictions applicable to student visa holders and that he will then employ Ms Ling as a permanent part-time employee.
The Tribunal explained the caveat that applies to the position of Massage Therapist (item 12 of LIN 19/048) excludes positions that are not full-time. This is in addition to the exclusion of positions that are not based in therapeutic settings or involve the provision of non-medical relaxation massage or are in retail settings.
The Tribunal further noted that, according to Mr Mao’s written statement of 25 August 2022, it appears that the position involves the provision of non-medical relaxation massage such as oil and hot stone massage.
The Tribunal further noted that, according to Departmental policy (whilst acknowledging that the Tribunal may be guided by the policy but is not bound to follow it), a therapeutic setting is defined as a facility that provides services which relate to the healing of disease, as opposed to relaxation services.
Finally, considering that the business is located in a shopping centre, and it sells non-medical services, specifically beauty services, directly to individual customers, this position may be considered to be in a retail setting, which will then be excluded by the applicable caveat. Mr Mao stated that the business has a street frontage and is not located inside the shopping centre.
On 13 November 2024, Mr Mao wrote to the Tribunal stating inter alia that:
‘We are expanding our business and need a full-time position. Part-time position is not enough for our expansion. Remedial massage will be another main business if we have a profession full time work team. Her current study is to level up her skills As Pui Ting LING has years of work experience, she can start to work for us without her diploma. Her study is to level up her skills only’.
Not in the shopping centre. We are not located in the shopping centre. Please see attached photos. We can state that this position is a full-time one and is based in a therapeutic setting.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made. The occupation must also apply to the nominee in accordance with the instrument.
The nominated occupation of Massage Therapist (ANZSCO 411611) is specified in the Short-Term Strategic Skills List set out in LIN 19/048. Item 12 of LIN 19/048 provides that the following inapplicability condition (caveat) is attached. If this caveat applies, the position of Massage Therapist is excluded from being approved under reg 2.72(8):
the position:
a) is not a full-time position; or
b) is not based in a therapeutic setting; or
c) involves the provision of non-medical relaxation massage; or
d) is in a retail setting.
In making its decision, the Tribunal considered Departmental policy related to Item 12 of the relevant legislative instrument, which, inter alia, states:
· a retail setting is a location where the sponsoring business sells non-medical services directly to individual customers. This could include a shop, store, market stall or a counter.
· a non-medical relaxation massage is defined as a massage provided with the intent to help the client relax. This is in contrast to therapeutic message which is expected to be delivered by a health care professional, qualified to assist with health needs and goals, in order to alleviate injuries or pain, or reduce the impacts of participation in a competitive sports event. Such professionals may schedule a number of appointments with a particular patient and provide exercises that they can continue at home.
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it. Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant. Nevertheless, the Tribunal considers that Departmental policy provides useful guidance in the present matter.
Based on the evidence before it, including the oral evidence of Mr Mao, a confirmation of enrolment letter from the Australasia International School dated 28 October 2024 and a statement of results related to the nominee’s study of a Diploma of Remedial Massage dated 6 November 2024, the Tribunal is not satisfied that the nominee will be employed on a full-time basis by the nominating business. The evidence presented indicates that the nominee commenced her course on 15 July 2024 and that the expected completion date is 21 December 2025.
Mr Mao gave evidence that the nominee applied for a student visa and is awaiting the outcome of that application. If the student visa is granted, Ms Ling will be prevented by the conditions imposed on her visa to work on a full-time basis. Mr Mao indicated that, if the nominee is granted a student visa, the business will be willing to employ Ms Ling as a permanent part-time employee. This type of employment is excluded by the inapplicability condition prescribed in Item 12(a).
Based on the employment agreement and the description of duties therein, the Tribunal finds that the position involves the provision of non-medical relaxation massage such as oil and hot stone massage. As such, the position is excluded by the inapplicability condition in Item 12(c).
In addition, the Tribunal finds that the nominating business is located in a retail setting as it provides non-medical services directly to individual customers. As such, the position is excluded by the inapplicability condition in Item 12(d).
Based on the evidence before it, the Tribunal finds that the nominated position is affected by the inapplicability condition/caveat specified in Item 12 of the relevant legislative instrument and as such finds that the nominated occupation is not applicable to the nominee in this position. As a result, the Tribunal finds that the applicant does not meet reg 2.72(8)(b).
DECISION
The Tribunal affirms the decision not to approve the nomination.
Date(s) of hearing: 12 November 2024
Representative for the Applicant: Mrs Qian Peng (MARN: 1678022)