Kerry's Traditional Chinese Massage Centre 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 Administrative Appeals Tribunal (AAT), constituted by Member Karen McNamara, was required to determine whether the nominator had demonstrated a genuine need to employ a paid employee for the nominated position. The Tribunal noted that the nominator had lodged two separate applications for the same occupation, one for Mr Yuhan Li and another for Ms Jingsi Huang, both of which had been refused by the Department.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of regulation 5.19(4)(a)(ii) of the Migration Regulations 1994, which mandates that an application for approval must identify a need for the nominator to employ a paid employee to work in the position under their direct control. While the Tribunal was satisfied that other formal requirements of the application were met, including its lodgement in the approved form and the absence of a fee for a regional position, the central question revolved around the genuine need for the employment.

The Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not satisfied the requirements of regulation 5.19(4). Although a previous, separate nomination application for Mr Li had been approved by the Tribunal, this decision related specifically to the nomination of Ms Huang. The Tribunal concluded that the applicant had failed to demonstrate a genuine need for a paid employee in the nominated Retail Manager position, which was a prerequisite for approval under the Direct Entry nomination stream. Consequently, the Tribunal affirmed the decision under review to refuse the nomination.