Parke, Madilyn Rose T/A North Queensland Bodyfix (Migration)

[2023] AATA 3803

Parke, Madilyn Rose T/A North Queensland Bodyfix (Migration) [2023] AATA 3803 (8 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Madilyn Rose Parke T/A North Queensland Bodyfix

REPRESENTATIVE:  Ms Bonnie Maree Thurecht (MARN: 1276291)

CASE NUMBER:  2000090

HOME AFFAIRS REFERENCE:               BCC2019/5712103

MEMBER:Terrence Baxter

DATE:8 November 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 08 November 2023 at 11:53am

CATCHWORDS
MIGRATION–nomination – Direct Entry stream – Marketing Specialist – no adverse information – tasks correspond to specified occupation – application is compliant –– genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.03, 2.57, 2.72, 5.19, 5.37

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 December 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, Ms Madilyn Parke, applied for approval on 12 November 2019. The applicant nominated Mr Frank Dissanayake (the nominee) in the position of Massage Therapist. The applicant operates a remedial massage practice under the business name North Queensland Bodyfix from premises situated at 35 Thuringowa Drive, Kirwan, Townsville, Queensland 4817. The applicant purchased the practice in 2011 after having previously worked as Manager of the practice. The applicant has employed the nominee as a Remedial Massage Therapist since February 2020.

3. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream. A nomination that relates to a visa in the Direct Entry stream must meet the requirements of reg 5.19(9): reg 5.19(4)(f). Regulation 5.19(9)(j) then requires that, for occupations for Subclass 187 (Regional Sponsored Migration Scheme) (RSMS) visas, the requirements of reg 5.19(12) must be met.

5. The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(9)(g) of the Regulations because the delegate found that the applicant had not demonstrated that her business had the capacity to employ the nominee for at least two years and to pay him at least the annual market salary rate for the occupation for that period of two years.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 3 January 2020.

7. The applicant appeared before the Tribunal by video conference on 6 September 2023 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by video conference.

8. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold the hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

9. The applicant was represented in relation to the review by her registered migration agent, Ms Bonnie Thurecht. The representative attended the Tribunal hearing by video conference.

10. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream-specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Evidence presented prior to the hearing

12. The applicant provided to the Department of Home Affairs (the Department) the following documents:

    a.The nomination application.

    b.ASIC evidence of registration of the business name North Queensland Bodyfix.

    c.Employment contracts of the nominee and another employee performing equivalent work.

    d.A copy of the Health Professionals and Support Services Award (the Award).

    e.A profit and loss statement for the 2019 financial year.

    f.Correspondence from the Regional Certifying Body (RCB), the Chamber of Commerce and Industry Townsville, dated 4 November 2019.

    g.Business activity statements for the period from January 2018 to March 2019.

    h.A job advertisement for the position accompanied by a recruitment report.

    i.Market salary evidence.

13. The applicant provided to the Tribunal the following documents in addition to documents provided to the Department:

    a.A copy of the delegate’s decision.

    b.Business activity statements for the period from October 2020 to March 2023.

    c.Profit and loss statements for the 2019 to 2023 financial years and balance sheets for the 2021 to 2023 financial years.

    d.The applicant’s taxation returns for the 2021 and 2022 financial years.

    e.A submission from the applicant dated 21 May 2022.

    f.A taxation assessment of the nominee for the 2021 financial year.

    g.Passports of the nominee and the secondary visa applicant.

    h.A practitioner performance report in respect of the nominee.

    i.Evidence of further labour market testing in November/December 2020.

    j.A submission in respect of the applicant’s business from Cinch Business Solutions dated 14 April 2021.

    k.An organisational chart.

    l.Evidence of the applicant’s tenancy of her business premises.

    The evidence at the hearing regarding the applicant’s operations

14. The applicant described the remedial massage services provided through her practice. She stated that the practice had been adversely affected by the COVID-19 pandemic, primarily as a result of border closures and lockdowns in the Townsville region. She said that, even after the lockdowns had ceased, problems had been caused by illnesses of staff and clients related to the pandemic. However, she said that the practice was now very busy.

15. The applicant stated that only she and the nominee were working in the practice at the present time. The applicant is also a qualified Massage Therapist. The nominee had previously worked as a Massage Therapist in Ipswich, Queensland while he held a Subclass 457 visa. He applied for the position with the applicant after the applicant had advertised in late 2019 and has been permanently employed by the applicant since February 2020.

    Evidence presented after the hearing

16. After the hearing, the applicant provided to the Tribunal the following documents:

    a.Evidence of the applicant’s payment plans with the Australian Taxation Office in respect of GST and income tax liabilities.

    b.A profit and loss account of the applicant for the months of July and August 2023.

    c.Evidence of payment of superannuation liabilities by the applicant.

    d.A determination of the annual market salary rate for the occupation of Massage Therapist accompanied by supporting evidence.

    e.A Form 1404 issued by the RCB on 4 November 2019.

    Application requirements – reg 5.19(4)(a)

17. Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:

    ·be made in accordance with approved form 1395 (Internet);

    ·identify the position;

    ·identify a person in relation to the position;

    ·identify an occupation in relation to the position;

    ·identify the subclass and stream to which the nomination relates;

    ·be accompanied by the fee mentioned in reg 5.37; and

    ·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).

18. Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.

19. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.

20. Having regard to the application and the information provided to the Department, the Tribunal is satisfied that the above requirements for a nomination have been met. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the RSMS and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The records of the Department confirm that the required nomination training contribution charge has been paid by the applicant.

21. Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.

    No adverse information known to Immigration – reg 5.19(4)(b)

22. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.

23. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.

24. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.

    Mandatory licensing, registration and memberships – reg 5.19(4)(c)

25. Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

26. In this instance, the relevant State or Territory is Queensland, the relevant occupation is Massage Therapist, and the date of application is 12 November 2019.

27. The Tribunal is satisfied that, although a Massage Therapist must be suitably qualified to work in the position, it is not mandatory for the nominee to hold a licence for that position.

28. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.

    Satisfactory compliance with employment laws – reg 5.19(4)(d)

29. Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

30. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.

31. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.

    Training contribution debts – reg 5.19(4)(da)

32. Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.

33. The records of the Department confirm that the nomination training contribution charge payable by the applicant has been paid in full. The Tribunal is satisfied that there is no debt due by the applicant relating to recovery of nomination training contribution charges or penalties for underpayment.

34. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.

    Actively and lawfully operating business – reg 5.19(9)(a)

35. Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.

36. The applicant has produced evidence from ASIC that the business name under which she trades is registered. The applicant has also produced financial statements to the 2023 financial year, tax returns to the 2022 financial year and business activity statements to the month of March 2023. The applicant has established that her ABN is active and that she is registered for GST.

37. The applicant’s financial statements reveal that she recorded income in the 2022 and 2023 financial years of $443,879 and $563,245 respectively. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely a massage therapy practice.

38. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.

    Labour hire businesses – reg 5.19(9)(b)

39. Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.

40. The applicant gave evidence that she does not provide labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire.

41. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.

    Genuine need for employment – regs 5.19(9)(c) and (d)

42. Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.

43. It is unclear whether the requirement under reg 5.19(9)(c) is directed just as a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(9)(c) is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(9)(c) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(9)(c) and reg 5.19(9)(d), which requires that there be a genuine need for the nominee to be employed in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(9)(e), which requires satisfaction that the employee will be employed on a full‑time basis in the position for at least two years. Given the uncertain scope of reg 5.19(9)(c), and the requirement in relation to this application to satisfy the following requirement under reg 5.19(9)(d), the Tribunal considers that this issue is more appropriately considered under reg 5.19(9)(d).

    [1] Dictionary.com (accessed October 2023).

    [2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Bharaj) (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(9)(c) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

44. The Tribunal considers that reg 5.19(9)(c) is more directed to the administrative process. The nomination application, on page 2 of that document, identifies that the position to be filled is that of Massage Therapist and on page 8 identifies the nominee. The Tribunal is therefore satisfied that the application for approval identifies a need for the nominee to be employed in the position of Massage Therapist under the applicant’s direct control such that reg 5.19(9)(c) is met.

45. Regulation 5.19(9)(d) requires that there is a genuine need for the nominee to be employed in the position under the direct control of the applicant. The applicant stated in a written submission to the Tribunal that the COVID-19 pandemic had caused a significant loss in the number of Remedial Massage Therapists available for employment in North Queensland. At the hearing, the applicant stated that she and the nominee were the only full-time Massage Therapists working in the practice. The organisational chart provided to the Tribunal in June 2023 referred to one part-time therapist, two casual therapists and a subcontractor therapist. The applicant stated that the part-time therapist would be leaving the practice at the end of the 2023 calendar year and that she no longer employed the other therapists referred to in the organisational chart.

46. The applicant stated that the nominee had been appointed to the position which had been left vacant for over one year after the previous holder of that position had left the applicant’s employment. She said that she personally worked approximately 40 hours per week in the practice as a therapist plus approximately four hours per week performing administrative duties.

1. The applicant provided evidence of income generated for her practice by the nominee as a Remedial Massage Therapist. When asked whether the practice required two full-time therapists, she said that it needed four.

2. The Tribunal has also had regard to the certificate of the RCB, the Chamber of Commerce and Industry Queensland, Townsville, advising that this requirement has been met. The Tribunal is satisfied that there is a genuine need for the nominee to be employed in the position of Massage Therapist under the direct control of the applicant.

3. Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.

   Future employment – regs 5.19(9)(e), (f) and (g)

4. Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.

5. Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least two years.

6. Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.

7. Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least two years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

   Full-time employment for two years

8. The employment contract dated 25 October 2019 provides that the position is full-time (38 hours per week). The position is Remedial Massage Therapist. The contract is for a period of two years from an unspecified date. However, the contract does provide for permanent employment, and this satisfies the requirements of the Department that the term of employment is to be for at least two years.

9. However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264).

10. Based on the information provided to the Department, the delegate was not satisfied that the applicant’s business had the capacity to employ the nominee for at least two years and to pay him at least the annual market salary rate for the occupation each year. The delegate noted that, although the applicant’s financial statements recorded a profit of $27,192 for the 2019 financial year, the nominee was not included as an employee in the organisational chart provided to the Department. The delegate found that it appeared that the nominee was not employed by the applicant at that time and that the applicant had not demonstrated how she could cover additional employment costs associated with the employment of the nominee.

11. The salary presently being paid to the nominee is $40.80 per hour, equivalent to $1,550.40 per week for a 38-hour week and $80,620.80 per annum.

12. The applicant’s business has been profitable in recent financial years, having recorded profits before tax of $127,958, $81,345 and $149,633 in the 2021, 2022 and 2023 financial years respectively. The nominee has been employed full-time throughout that period, having been paid salaries of $71,371, $73,824 and $80,205 in those years respectively.

13. At the hearing, the Tribunal expressed its concern that the applicant’s financial statements appeared to indicate that superannuation payable to employees of the practice had not been paid and that the applicant had incurred a liability to the Australian Taxation Office in respect of GST and income tax. After the hearing, the applicant produced evidence that all superannuation liabilities have been paid in full and that she has entered into payment plans with the ATO for the outstanding GST and income tax and that she is meeting her commitments under those payment plans.

14. The Tribunal is satisfied that the applicant has the financial capacity to meet her employment obligations to the nominee for at least two years. Accordingly, the Tribunal finds that the nominee will be employed on a full-time basis in the position for at least two years.

    Terms and conditions of employment not to include an express exclusion of the possibility of extension

15. The employment contract specifically provides that the term of the contract of two years can be continued.

    The applicant’s capacity to employ the nominee for at least two years and to pay the annual market salary rate for the occupation

16. As is recorded later in these Reasons, the applicant has determined the annual market salary rate at $80,620.80. The Tribunal has found that the applicant has the financial capacity to employ the nominee for at least two years and to pay him a salary of that figure of $80,620.80. It therefore follows that the Tribunal is satisfied that the applicant has the financial capacity to pay the annual market salary rate for that period of two years.

17. The Tribunal is satisfied that the applicant’s business has the capacity to employ the nominee for at least two years and to pay him at least the annual market salary rate for the occupation in each of those two years.

18. Given the above findings, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.

    Annual earnings – reg 5.19(9)(h)

19. Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument of IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold (TSMIT) specified in the instrument, unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);

    ·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;

    ·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and

    ·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

20. The salary payable to the nominee $80,620.80 per annum. The specified amount of annual earnings in instrument IMMI 18/033 is $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

    Regulation 2.72(15)(c) – has the applicant determined the rate for the occupation in accordance with the instrument?

21. The Tribunal is satisfied, from the evidence provided by the applicant, that the applicant does not have an Australian worker performing equivalent work to that being performed by the nominee in the same workplace as the nominee. The instrument provides that, in these circumstances, where there is a Fair Work instrument, a State industrial instrument or transitional instrument applicable to the nominated occupation, the rate is the annual earnings of an equivalent worker specified in those instruments.

22. The applicant has agreed that the Award applies to the nominated occupation and has submitted that the appropriate classification for the nominee under the Award is Health Professional, Level 3, Pay point 1. The Tribunal is satisfied that the Award applies to the nominated occupation and that the applicant’s determination of the nominee’s classification is appropriate. The applicant has provided evidence from the Award that the minimum hourly rate payable to an employee with that classification is currently $40.80 per hour, equivalent to $1,550.40 for a 38-hour week, or $80,620.80 per annum, and has determined the rate at that figure of $80,620.80. The Tribunal is satisfied that the applicant has determined the rate for the occupation in accordance with the instrument.

23. For these reasons the requirements of reg 2.72(15)(c) are met.

    Regulation 2.72(15)(d) – is the rate, excluding any non-monetary benefits, for the occupation, as determined, less than the TSMIT?

24. The TSMIT specified in IMMI 18/033 is $53,900 per annum. The rate of $80,620.80 as determined by the applicant in accordance with the instrument exceeds the TSMIT.

25. For these reasons the requirements of reg 2.72(15)(d) are met.

    Regulation 2.72(15)(e) – will the nominee’s annual earnings be less than the rate for the occupation as determined?

26. The nominee’s base salary will be $80,620.80 per annum. According to the nominee’s payslips, the applicant has also been paying to the nominee a regular Supervisor Shift Bonus. The nominee’s annual earnings will be not less than the rate as determined.

27. For these reasons the requirements of reg 2.72(15)(e) are met.

    Regulation 2.72(15)(f) – will the nominee’s annual earnings, excluding any non-monetary benefits, be less than the TSMIT?

28. The nominee’s annual earnings, excluding any non-monetary benefits, will be at least $80,620.80. These annual earnings exceed the TSMIT of $53,900.

29. For these reasons the requirements of reg 2.72(15)(f) are met.

    Regulation 2.72(15)(g) – is there information known to Immigration that indicates that the rate for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation?

30. The rate of $80,620.80 has been determined by reference to the minimum rates payable under the relevant Award. The applicant has also provided a recent job advertisement for the position of Remedial Massage Therapist in Townsville with an advertised salary range from $70,000 to $100,000 per annum. The rate is comfortably within the advertised range. There is no evidence before the Tribunal to indicate that the rate for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation.

31. For these reasons the requirements of reg 2.72(15)(g) are met.

32. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.

    No information to indicate less favourable employment conditions – reg 5.19(9)(i)

33. Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.

34. The employment contract provides the nominee is entitled to annual leave, paid personal/carer’s leave and unpaid parental leave in accordance with the Fair Work Act 2009 (Cth) and long service leave in accordance with relevant legislation. The applicant is required to make superannuation contributions on behalf of the nominee in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth). There is no information before the Tribunal which indicates that the nominee’s employment conditions (other than in relation to earnings) are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location.

35. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.

    Tasks correspond to specified occupation – reg 5.19(9)(j)

36. Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 187 visa.

37. Regulation 5.19(12) contains a number of requirements including that:

    ·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).

    ·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).

    ·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).

    ·a specified RCB located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).

    Regulation 5.19(12)(a) – the position is located at a place in regional Australia

38. In the application, the applicant indicated that the postcode where the nominee was to be employed was Queensland 4817. That postcode is specified in the relevant instrument as being in regional Australia. Based on the evidence, the Tribunal is satisfied that the position is located at 35 Thuringowa Drive, Kirwan, Queensland 4817 and that the position is located in regional Australia. Accordingly, the requirements of reg 5.19(12)(a) are met.

    Regulation 5.19(12)(b) – the business operated by the nominator is located at that place

39. The evidence provided by the applicant establishes that the applicant’s business is conducted at 35 Thuringowa Drive, Kirwan, Queensland 4817. Accordingly, the requirements of reg 5.19(12)(b) are met.

    Regulation 5.19(12)(c) – the position cannot be filled by an Australian citizen or Australian permanent resident who was living in, or would move to, the local area concerned

40. The position was advertised on the site Jora in September 2019. The applicant provided a recruitment report to the Department to the effect that there had been five job applicants, including the nominee. Of the other four applicants, three were not Australian citizens or Australian permanent residents. The applicant gave evidence at the hearing that the fourth of those job applicants was not qualified for the position, having no experience in remedial massage and expressed a preference to work in a day spa practice.

41. The Tribunal has also had regard to the advice of the RCB referred to in paragraph 48 above that this requirement has been met. The RCB advised that documentary evidence had been supplied and researched to demonstrate difficulty and challenges in finding qualified and experienced staff either available locally or prepared to work in regional Queensland. Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in or prepared to move to the same local area as the workplace. Accordingly, the requirements of reg 5.19(12)(c) are met.

    Regulation 5.19(12)(d) – the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant legislative instrument

42. The relevant legislative instrument is LIN 19/047. The occupation proposed by the applicant was Massage Therapist which has the 6-digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 411611, and which is specified in the instrument. The tasks specified in the ANZSCO for that occupation are as follows:

    ·massaging the soft tissues of the body, such as muscles, tendons and ligaments, to assist healing

    ·utilising a range of massage techniques to enhance sports performance and prevent injury

    ·administering treatments to promote relaxation, improve circulation and relieve muscle tension

    ·assessing and treating specific soft tissue dysfunction and providing rehabilitation advice

    ·employing other techniques, such as acupressure or Shiatsu, and complementary aids, such as infra-red lamps, wet compresses, ice, essential oils and herbal and mineral therapies, to assist recovery

    ·assessing client's physical condition and case history and advising on stretching exercises and relaxation techniques.

43. The nominee’s functions and duties according to his job description are:

    1) Perform massage therapy or other qualified services to clients of NQ Bodyfix.
    2) Creating treatments and treatment plans.
    3) Basic cleaning and tidying of NQ Bodyfix facilities.
    4) Customer service such as assisting client's queries and greeting clients when they enter the office.
    5) Taking transactions via EFPTOS, HICAPS and cash handling and processing Gift Vouchers.
    6) Liaise and communicate directly with clients and gain the respect and trust of clients to promote repeat visits.
    7) Otherwise attend to any matter or issues reasonably necessary or required.
    8) Liaise and communicate openly and effectively with fellow team members to work in a harmonious environment.
    9) Provide mentoring / client management advice to other therapists in any capacity that you see fit in order to advance their skill and knowledge levels; and
    10) Undertake marketing activities and seek to establish and increase their reputation, at the same time build the clinic's client base with appropriate support from the employer.

44. The Tribunal discussed with the applicant at the hearing the tasks performed by the nominee in the position. She stated that the nominee’s responsibility first and foremost was to provide remedial massage for clients of the practice. The applicant said that the nominee was also required to perform some administrative tasks such as receiving payments from clients, arranging bookings and attending to cleaning of the premises to follow health guidelines.

45. The Tribunal noted that some of the nominee’s duties referred to in the job description and described by the applicant were of an administrative nature and not necessarily corresponding to the tasks described in the ANZSCO. The applicant stated that the nominee spends less than one hour per day on administrative tasks. She said that these tasks had been included in the job description so that the nominee could be expected to perform those tasks only if required.

1. The applicant said that the nominee did perform the major tasks specified in the ANZSCO, namely, massaging soft tissues of the body to assist healing and utilising massage techniques to enhance sports performance and prevent injury. She said that the nominee had carried out additional training courses and that he created treatment plans for clients, particularly for treatment of sports-related injuries.

2. The nominee also gave evidence of the tasks performed by him in the position. The nominee was not present in the hearing when the evidence of the applicant was given. His evidence was consistent with that of the applicant.

3. The Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Massage Therapist specified by the Minister in the relevant instrument. Accordingly, the requirements of reg 5.19(12)(d) are met.

   Regulation 5.19(12)(e) – the occupation applies to the nominee in accordance with the relevant instrument

4. As recorded in paragraph 88 above, the occupation of Massage Therapist is specified in instrument LIN 19/047. The ANZSCO classification for this occupation provides that the occupation is a Skill Level 2 occupation, requiring that the nominee holds an Associate Degree, Advanced Diploma or Diploma, and that at least three years’ relevant experience may substitute for the formal qualifications. Evidence has been provided to the Tribunal that the nominee holds a Diploma of Remedial Massage as well as a Certificate in Massage Therapy Practice and that he has completed several additional courses. The nominee has almost four years’ experience in the position while employed by the applicant. Accordingly, the requirements of reg 5.19(12)(e) are met.

   Regulation 5.19(12)(f) – the Minister has been advised by a body that meets the requirements set out in reg 5.19(12)(g) (the RCB) about three specified matters

5. The Form 1404 dated 4 November 2019 contains advice regarding the three matters specified in reg 5.19(12)(f). The RCB has advised that the nomination satisfies the respective requirements. Accordingly, the requirements of reg 5.19(12)(f) are met.

6. Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.

7. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

   DECISION

8. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

   Terrence Baxter
   Member

   
   

   ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   5.19 Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

   Application

   (1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

   (2)The application must:

   (a)be made in accordance with approved form 1395 (Internet); and

   (b)identify the position; and

   (c)identify a person (the identified person) in relation to the position; and

   (d)identify an occupation in relation to the position; and

   (e)identify the subclass and stream to which the nomination relates, which must be one of the following:

   (i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

   (ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

   (iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

   (iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

   (v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

   (f)be accompanied by the fee mentioned in regulation 5.37; and

   (fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

   (fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

   (g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

   Approval of nomination

   (3)The Minister must, in writing:

   (a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

   (b)otherwise—refuse to approve the nomination.

   Requirements for approval—general

   (4)The requirements to be met for the nomination to be approved are as follows:

   (a)the application is made in accordance with subregulation (2);

   (b)either:

   (i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

   (ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;

   (c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

   (i)hold a licence of a particular kind; or

   (ii)hold registration of a particular kind; or

   (iii)be a member (or a member of a particular kind) of a particular professional body;

   to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

   (d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

   (da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

   (e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

   (f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

   (g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

   …

   Direct Entry stream—additional requirements for approval

   (9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:

   (a)the nominator is actively and lawfully operating a business in Australia;

   (b)if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;

   (c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

   (d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

   (e)the identified person will be employed on a full‑time basis in the position for at least 2 years;

   (f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

   (g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

   (h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

   (i)paragraph 2.72(15)(a) did not apply; and

   (ii)references to the nominee were references to the identified person; and

   (iii)references to the person were references to the nominator;

   (i)either:

   (i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

   (ii)it is reasonable to disregard any such information;

   (j)the requirements set out in subregulation (10) or (12) are met.

   Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream

   (10)The requirements of this subregulation are as follows:

   (a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:

   (i)made under subregulation (11); and

   (ii)in force at the time the application is made;

   (b)the occupation applies to the identified person in accordance with that instrument.

   (11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

   (a)the nominator;

   (b)the identified person;

   (c)the occupation;

   (d)the position in which the identified person is to work;

   (e)the circumstances in which the occupation is undertaken;

   (f)the circumstances in which the person is to be employed in the position.

   Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream

   (12)The requirements of this subregulation are as follows:

   (a)the position is located at a place in regional Australia;

   (b)the business operated by the nominator is located at that place;

   (c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

   (d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:

   (i)made under subregulation (13); and

   (ii)as in force at the time the application is made;

   (e)the occupation applies to the identified person in accordance with that instrument;

   (f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:

   (i)whether the identified person would be paid at least the annual market salary rate for the occupation;

   (ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

   (iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

   (g)the body must:

   (i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and

   (ii)be located in the State or Territory in which the position is located; and

   (iii)have responsibility for the local area in which the position is located.

   (13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

   (a)the nominator;

   (b)the identified person;

   (c)the occupation;

   (d)the position in which the identified person is to work;

   (e)the circumstances in which the occupation is undertaken;

   (f)the circumstances in which the person is to be employed in the position.

   …

   Meaning of regional Australia

   (16)In this regulation:

   regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.