Bernd Adolph ATF Subiaco Sports Massage Trust (Migration)

The Administrative Appeals Tribunal considered a migration matter involving Bernd Adolph ATF Subiaco Sports Massage Trust as the applicant and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs as the respondent. The dispute concerned the approval of a nominated position for a Massage Therapist, which had been refused by the delegate. The Tribunal was tasked with determining whether the applicant met the criteria for approval of the nomination.

The primary legal issue before the Tribunal was whether the nominated occupation of Massage Therapist, with the ANZSCO code 411611, was specified in the relevant legislative instrument, LIN 19/048, and whether it was subject to any inapplicability conditions that would prevent its approval. Specifically, the Tribunal had to consider if the nominated position met the requirements of LIN 19/048, including whether it was a full-time position, based in a therapeutic setting, and did not involve non-medical relaxation massage or a retail setting, as stipulated by inapplicability condition 12.

The Tribunal found that the nominated occupation and its code were indeed specified in LIN 19/048. Crucially, the Tribunal determined that inapplicability condition 12 did not apply to the nominated position. The reasoning was that the position was a full-time role, situated in a therapeutic setting, and did not involve non-medical relaxation massage or a retail setting. Having satisfied this condition and all other applicable criteria under Regulation 2.72 of the Migration Regulations 1994, the Tribunal concluded that the applicant had met all the requirements for the nomination to be approved.

Consequently, the Tribunal set aside the delegate's decision not to approve the nomination and substituted a decision approving the nomination.