Kempo Ryu Pty Ltd (Migration) - [2022] AATA 4504

Kempo Ryu Pty Ltd (Migration) [2022] AATA 4504 (21 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Kempo Ryu Pty Ltd
REPRESENTATIVE:  Mr Mark Roberts (MARN: 1575942)
CASE NUMBER:  1916743
HOME AFFAIRS REFERENCE(S):          BCC2018/981969
MEMBER:Namoi Dougall
DATE:21 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 21 October 2022 at 12:07pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Organisation and Methods Analyst – martial arts organisation – setting up operation in Brazil – active and lawful operation – ASIC records – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r, 5.19

CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 June 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 1 March 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(3)(b)(ii) of the Regulations because the delegate was not satisfied that the applicant was lawfully and actively trading as the applicant was no longer registered with ASIC.
The director of the applicant, Mr Mylonas appeared on behalf of the applicant before the Tribunal on 6 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gabriel Diniz (the nominee).
The applicant was represented in relation to the review.
BACKGROUND
It was submitted in a submission provided to the Department that the applicant trading as World Martial Arts Championships is a martial arts organisation which was established over 20 years ago and from 10 years ago expanded into Japan, New Zealand, Sri Lanka, Europe (Portugal and Greece), the United States of America, Hong Kong and at the time of a submission to the Department dated 21 February 2018, they were ‘securing’ Brazil. The submission also stated that the applicant is looking for a local person with skills in the fitness and martial arts industries in Brazil. The applicant had obtained the nominee’s assistance in building their online entries…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 4504
Decision Date: 21 October 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning a migration matter involving Kempo Ryu Pty Ltd, trading as World Martial Arts Championships. The dispute centred on the approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant sought to employ an individual as an Organisation and Methods Analyst to manage their operations in Brazil.

The primary legal issue before the Tribunal was whether the applicant met the requirements for approval of the nominated position under regulation 5.19(4) of the Migration Regulations. Specifically, the Tribunal had to determine if the application was in the approved form, accompanied by the prescribed fee, and included the necessary certification regarding conduct contravening s 245AR(1) of the Act. Crucially, the Tribunal also had to assess whether the applicant genuinely identified a need to employ a paid employee to work in the nominated position under their direct control.

The Tribunal reasoned that the application satisfied the formal requirements, including being in the approved form and having the prescribed fee waived. It was also satisfied that the applicant had provided the required certification. The Tribunal found that the applicant had demonstrated a genuine need for a paid employee to fill the position of Organisational Management Facilitator (ANZSCO Organisation and Methods Analyst 224712) within their business, particularly in relation to establishing and managing operations in Brazil. The Tribunal concluded that all requirements of regulation 5.19(4) were met.

Consequently, the Tribunal decided to set aside the original decision and substitute it with a decision approving the nomination.

Orders

Orders of the court

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Background

Background to the litigation

The applicant was represented in relation to the review.BACKGROUND It was submitted in a submission provided to the Department that the applicant trading as World Martial Arts Championships is a martial arts organisation which was established over 20 years ago and from 10 years ago expanded into Japan, New Zealand, Sri Lanka, Europe (Portugal and Greece), the United States of America, Hong Kong and at the time of a submission to the Department dated 21 February 2018, they were ‘securing’ Brazil. The submission also stated that the applicant is looking for a local person with skills in the fitness and martial arts industries in Brazil. The applicant had obtained the nominee’s assistance in building their online entries and client database management as it is common in the martial arts business for people to work voluntarily initially to help build an organisation. The submission further stated that now the nominee has proven his abilities to build and manage the applicant’s IT and CRM tools they want him to manage this for Brazil. Reference is also made to his language skills in speaking Portuguese and that the applicant’s director trusts his buisness acumen and intent to protect their commercial information. In relation to employing someone in Australia rather than Brazil it was submitted that it would be superior for the organisation because if the person was in Brazil the applicant could not see their intent or their effectiveness and efficiency. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control. Based on material in the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee, which in this case was nil. The Tribunal is also satisfied that the applicant certified, on the application form, that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR(1) of the Act. In the application, the applicant identified Mr Gabriel Diniz as the person they wish to employ in the position of Organisational Management Facilitator (ANZSCO Organisation and Methods Analyst 224712). The position, which is a paid one, is in the applicant’s business, WMAC – World Martial Arts Championships. The nature of the position, the tasks of the position and whether there is a genuine need for the position in the applicant’s business are matters discussed in more detail below. For the purposes of r.5.19(4)(a)(ii), the Tribunal is satisfied that the application identifies a need for the nominator to employ a paid employee to work in the position under their direct control.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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