Kerry's Traditional Chinese Massage Center Pty Ltd (Migration)

This matter concerned an application by Kerry’s Traditional Chinese Massage Centre Pty Ltd for approval of a nomination for a Retail Manager position under the Direct Entry stream. The Tribunal, presided over by Member Karen McNamara, was required to determine whether the applicant met all the requirements of Regulation 5.19(4) of the Migration Regulations 1994 for the nomination to be approved.

The central legal issues before the Tribunal were whether the nominator genuinely needed to employ a paid employee for the Retail Manager position, whether the position could be filled locally by an Australian citizen or permanent resident, and whether the nominator had the financial capacity to employ the nominee full-time for at least two years. The Tribunal also considered whether the nominator was actively and lawfully operating a business, whether the terms and conditions of employment were no less favourable than those offered to local workers, and whether there was any adverse information known to the Department or a satisfactory record of compliance with workplace relations laws.

The Tribunal found that the nominator, operating five massage centres in the Darwin region, had demonstrated a genuine need for a Retail Manager due to business expansion and the owner's husband's ill health, which limited his ability to assist with management. The Tribunal was satisfied that the business had sufficient financial capacity, evidenced by substantial sales and salary expenses, to employ the nominee. Furthermore, the Tribunal accepted that the position could not be filled locally, that the terms of employment were equitable, and that the nominator had complied with relevant regulations regarding business operations and workplace relations.

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