Day Spa Co Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for approval of a nomination of a position under the direct entry stream. The applicant, Day Spa Co Pty Ltd, sought approval for a nominated position of a massage therapist. The core of the dispute revolved around whether the applicant met the various regulatory requirements for approving such a nomination, particularly concerning financial capacity and the genuine need for the nominated employee.

The Tribunal was required to determine if the applicant satisfied the general requirements for nomination approval under regulation 5.19(4) and the specific requirements for the direct entry stream under regulation 5.19(9) of the Migration Regulations 1994. This involved assessing whether the application was correctly made, if the nominee held the necessary qualifications and registrations, if the nominator had a satisfactory compliance record with employment laws, and if the business was actively and lawfully operating. Crucially, the Tribunal had to consider the genuine need for the position, the nominator's financial capacity to employ the nominee for at least two years, and whether the position could be filled by an Australian citizen or permanent resident.

The Tribunal found that the applicant had met the procedural requirements for the application, including using the correct form and paying the prescribed fee. It was satisfied that the nominee was a certified remedial massage therapist with specific training in Thai massage, fulfilling the mandatory registration requirements in Victoria. Furthermore, there was no adverse information regarding the nominator's compliance with employment laws, and the business was actively and lawfully operating. The Tribunal accepted evidence that the position could not be filled by a local worker and that there was a genuine need for the nominee's specialised skills. Crucially, the Tribunal was satisfied, based on recent audited financial statements demonstrating consistent and significant revenue, that the nominator had the financial capacity to employ the nominee for the required two-year period.

Consequently, the Tribunal set aside the original decision and substituted a new decision approving the nomination.