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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 20 Plus Cosmetic Pty Ltd (Migration) [2024] ARTA 573
Case: [2024] ARTA 573
Decision Date: 18 November 2024

CaseChat Overview and Summary

The matter involved an application by 20 Plus Cosmetic Pty Ltd for the approval of a nomination for a Massage Therapist position under the short-term stream. The Tribunal was required to determine whether the nominated occupation met the conditions set out in the relevant legislation and guidelines. The key issue before the Tribunal was whether the nominated position of Massage Therapist was exempt from approval under the inapplicability condition specified in Item 12 of LIN 19/048. This condition excludes positions that are not based in a therapeutic setting. The Tribunal considered evidence provided by the applicant, including the oral testimony of Mr Mao, a confirmation of enrolment letter from the Australasia International School, and a statement of results related to the nominee’s study of a Diploma of Remedial Massage.

The Tribunal concluded that the nominated position was affected by the inapplicability condition specified in Item 12 of the relevant legislative instrument. This condition excludes positions that are not based in a therapeutic setting, and the evidence did not establish that the nominee would be employed on a full-time basis by the nominating business. The Tribunal found that the nominee's employment was not in a therapeutic setting and was not full-time, as required by the legislative instrument. The Tribunal was not persuaded by the applicant's arguments and found that the nominated occupation was not applicable to the nominee in this position. Consequently, the Tribunal affirmed the decision not to approve the nomination.

The Tribunal found that the applicant did not meet the requirements of regulation 2.72(8)(b) as the nominated occupation was not applicable to the nominee in the position due to the inapplicability condition. The Tribunal affirmed the decision not to approve the nomination of the Massage Therapist position. The decision was made on 12 November 2024, with Mrs Qian Peng representing the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCESpecified 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; orb) is not based in a therapeutic setting; orc) involves the provision of non-medical relaxation massage; ord) 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.

Decision

Reasons for decision

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 2024Representative for the Applicant: Mrs Qian Peng (MARN: 1678022)

Ratio Decidendi

Legal Principle Established

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