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

1. 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).

2. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. 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.

5. 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).

6. The applicant was represented in relation to the review.

   BACKGROUND

7. 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.

8. 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.

9. 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

1. 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.

The application is compliant: reg 5.19(4)(a)

1. 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.

2. 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.

3. 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.

4. Given the above, the Tribunal finds that requirements in reg 5.19(4)(a) are met.

Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

1. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

2. The applicant trading as World Martial Arts Championships is a martial arts organisation which organises martial art events in a number of different countries. Provided copies of: ASIC records; bank statements for October 2018 to March 2019; financial statements for the financial years ending 30 June 2020, 2021 and 2022; company tax returns for the tax years ending 2019, 2020 and 2021; and payslips for the applicant’s employee for May and June 2022. On the totality of the evidence the Tribunal is satisfied that the is actively and lawfully operating a business in Australia.

3. Accordingly, the requirement in reg 5.19(4)(b) is met.

Position is not labour-hire: reg 5.19(4)(c)

1. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.

2. The nominator’s business activities do not involve the hiring of labour to an unrelated business. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

Term of employment of the visa holder: reg 5.19(4)(d)

1. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

2. The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in the letter of engagement signed by both a director of the applicant and the nominee and dated 2 February 2018 (the letter of engagement). Also provided to the Tribunal was a letter dated 7 June 2022 from the applicant to the nominee which confirmed the offer of employment set out in the letter of engagement (the confirmation letter). The letter of offer provides that the nominee is to be employed on a full-time basis of 38 hours per week on a salary of $56,000 per annum. The terms and conditions set out in the letter of engagement do not expressly exclude the possibility of an extension. The confirmation letter confirms that the position will be a full time permanent position and is not subject to any express exclusion of the possibility of renewal. The confirmation letter also indicates that the nominee’s annual salary is to be increased to $65,000 per annum plus the superannuation guarantee. The Tribunal is satisfied that the letter of offer and the confirmation letter provide for employment on a full-time basis for at least two years. Given the above, the Tribunal is satisfied that the nominee will be employed in the nominated position for at least 2 years full time and the terms and conditions of that employment do not expressly exclude the possibility of an extension

3. 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). The Tribunal has been provided with the applicant’s financial statements for the financial years ending 30 June 2020, 2021 and 2022. The applicant for those last 3 financial years had turnovers of $367,636, $488,966 and $441,729 respectively. The profit for the same 3 years were: $125,194; $150,385; and $134,582. The net assets position for the financial ending 30 June 2020 and 2021 was negative assets of $69,410 and then $57,588 and then for the financial year ending 30 June 2022 total assets of $158,525.

4. On the above the Tribunal is satisfied that the applicant has the financial capacity to meet the wage costs of the nominee over the employment period.

5. Accordingly, the requirement in Reg 5.19(4)(d) is met.

No less favourable terms and conditions of employment: reg 5.19(4)(e)

1. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

2. Provided to the Tribunal was the confirmation letter in which the applicant confirmed his offer of employment set out in the letter of engagement. The confirmation letter also confirmed that the applicant’s base salary would be increased to $65,000 per annum plus superannuation. The letter of offer also set out other terms and conditions of employment including leave entitlements.

3. Provided to the Tribunal was a PayScale.com market salary report for an average entry-level business analyst, IT in Australia which indicated that the salary range was from $50,000 to $83,000 with the median being a salary of $62,725 per annum. The salary report further indicated that an early career Business Analyst, IT with 1 to 4 years’ experience can expect an average total compensation of $75,319 per annum. The nominee’s salary of $65,000 per annum plus the superannuation guarantee is within the range indicated by PayScale.com and close to the average total compensation for an early career Business Analyst. The Tribunal is satisfied on the evidence before it that the proposed salary of $65,000 plus the superannuation guarantee is within the average market rate for an Australian equivalent.

4. On the totality of the evidence, the Tribunal is satisfied that the terms and condition applicable to the position will be no less favourable than those that would be provided to a permanent resident performing equivalent work in the same workplace at the same location. Accordingly, the requirements of reg 5.19(4)(e) are met.

No adverse information known to Immigration: reg 5.19(4)(f)

1. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.

2. 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.

3. Accordingly, the requirement in reg 5.19(4)(f) is met.

Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

1. Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

2. 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.

3. Accordingly, the requirement in reg 5.19(4)(9) is met.

Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

1. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

   ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI18/005), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

   ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a local resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

2. The nominated occupation of Organisation and Methods Analyst (ANZSCO 22471) is an occupation specified in the relevant instrument.

3. Provided to the Department was a letter of engagement dated 2 February 2018 between the applicant and the nominee which stated at clause 1.5 in relation to the nominee’s responsibilities as follows:

   Your responsibilities will include the control of WMAC's Brazil (known as BMAC) Regional systems, online database, payment system and Online Entries, as well as control of all customer enquiries, the monitoring of customer feedback, evaluating business improvement requirements and opportunities and liaising with WMAC's IT providers to ensure the BMAC operations are efficient and effective with minimum disruptions to revenue and customer satisfaction. This will also entail analysing current structures and procedures to ensure that in the ongoing expansion of WMAC that its systems and processes are both reliable and sufficient to handle the future changes.

4. The letter of engagement dated 2 February 2018 provided to the Tribunal contained an addendum which was a position description which stated:

   Your responsibilities will include the control of WMAC’s Brazil/Portgual (known as BMAC & EMAC)

   1. Regional systems, online database, payment system and Online Entries Portal 2. Control of all customer enquiries
   3. Monitor of customer feedback

   4. Evaluating business improvement requirements and opportunities and liaising with WMAC’s IT providers to ensure the BMAC operations are efficient and effective with minimum disruptions to revenue and customer satisfaction.

   This will also entail analysing current structures and procedures to ensure that in the ongoing expansion of WMAC that its systems and processes are both reliable and sufficient to handle the future changes. .

   5. Travel to Brazil will be required a minimum 2 times per year (dates will be provided at a minimum 1 month notice of travel date) with WMAC Technical Officers or Executive Team members - as advised by the employer. travel cost & allowances with be paid by the employer as required and advised at the time of travel.
   6. This role will report directly to the WMAC Operation Director - Ms Margaret Le (at the time of writing of the LoE).

5. A Business Plan provided to the Tribunal on 29 August 2022 (the Business Plan) stated that the applicant was established in 1993 as Australia’s top karate school. Originally WMAC was the national championships where all styles of martial arts attended and later it became an international tournament circuit, the first and only Australian martial arts circuit to originate from Australia. Through the applicant’s President and CEO, Mr Peter Mylonas the WMAC developed strong ties with Japan and the inaugural tournament was held in Japan in 2013. It was further stated that now WMAC primary focus is now South America particularly Brazil where it can extend into other South American countries. It was also stated that the applicant needs a specialist associate who is familiar with the cultural issues and is fluent in both languages to secure the administration in these markets.

6. The Business Plan under the heading ‘Critical Success Factors’ stated that it is critical to have a professional fluent in Portuguese and English who is knowledgeable about Brazil’s systems and:

   “…experienced in designing, planning and implementing processes from the ground up as well as integrating our current system into the new ones. This role will leverage and facilitate the Brazilian market, being responsible to gather all local business requirements and laws to run tournaments will (sic) full compliance and promote interactions with the major Brazilian Martial Arts organisations.”

7. In considering the nature of the position and the tasks to be performed in the position, and whether they correspond with the tasks of the nominated occupation of Organisational Management Facilitator (Organisation and Methods Analyst Management Consultant, ANZSCO 224712), which is specified in the relevant instrument, the Tribunal has had regard to the information set out in ANZSCO (Australia and New Zealand Standard Classification of Occupations) for that occupation. Generally, ANZSCO states in relation to the Unit Group 2247 Management and Organisation Analysts that they: “assist organisations to achieve greater efficiency and solve organisational problems, and study organisational structures, methods, systems and procedures”.

8. In relation to Organisation and Methods Analyst (22471), ANZSCO states that they study: “organisational structures, methods, systems and procedures.” Specialisations include Change Management Facilitator; Industry Analyst; Quality Auditor; and Skills Auditor.

9. On 18 February 2022, the Tribunal was provided with a comparison of the tasks listed in ANZSCO under Unit Group 247 Management and Organisation Analysts and the nominees job description in which the applicant’s representative matched the ANZSCO tasks to the nominee’s tasks in a table. Below the ANZSCO tasks for the nominated position (as a heading) are listed and underneath each of those ANZSCO tasks are the representative’s allocation of the nominee’s tasks (dot points).

   1.     assisting and encouraging the development of objectives, strategies and plans aimed at achieving customer satisfaction and the efficient use of organisations' resources

   ·Control of all customer enquiries

   ·Monitor customer feedback.

   2.     discussing business and organisational shortcomings with clients

   ·Evaluate business improvement requirements and opportunities and liaising with WMAC’s IT providers to ensure the BMAC operations are efficient and effective with minimum disruptions to revenue and customer satisfaction.

   ·Analysing current structures and procedures to ensure that in the ongoing expansion of WMAC that its systems and processes are both reliable and sufficient to handle future changes.

   3.     analysing and evaluating current systems and structures

   ·Same as 2 above

   4.     discussing current systems with staff and observing systems at all levels of organisation

   ·Same as 2 above

   5.     directing clients towards more efficient organisation and developing solutions to organisational problems

   ·Same as 2 above.

   6.     undertaking and reviewing work studies by analysing existing and proposed methods and procedures such as administrative and clerical procedures

   ·Same as 2 above.

   7.     recording and analysing organisations' work flow charts, records, reports, manuals and job descriptions

   ·No suggested position description equivalent.

   8.     assisting in implementing approved recommendations, issuing revised instructions and procedure manuals, and drafting other documentation

   ·Management and control of regional systems, online database, payment systems and online entries portal

   9.     reviewing operating procedures and advising of departures from procedures and standards

   ·Same as 2 above.

1. At the hearing Mr Mylanos stated that the applicant started as a volunteer with the applicant from around 2016 and 2017 working on the online portal. Entries and payment come in for competitions are now done online. The nominee worked with coder who developed the program, and he was the middleman between Mr Mylonas and the developers. Currently Mr Mylanos runs the online portal and if there are technical issues or customer complaints the developers deal with the technical issues, and they update the portal. The nominee has not done any work for the applicant since then.

2. At the hearing Mr Mylanos stated that he will continue to do what he does as he deals with participants issues as they come through the portal and they have issues such as a wrong grade, date of birth. The applicant needs to update information such as venues and dates. The nominee is to take over the task of dealing with participant issues and information update. There is a lot of data and regions that the applicant looks after and there has not been focus on getting more clubs and participants into the organisation. Growth of 10% would see a large increase in revenue. To do this requires ongoing marketing to bring in more participants and there is potential for growth in regions. Also, instead of increasing costs the applicant needs to lower fix costs such as venue costs and, if they do not control costs, fees will have to go up and there are other organisations members may join. The nominee will need to look at the costs base to reduce costs particularly venues. Another task will be to find cheaper venues particularly in Europe (currently Portugal) and South America.

3. At the hearing a fix cost of firsts aid providers so you can choose a provider who does the job well but at a reduced cost. The final decision on which first aid provider will be used will be Mr Mylanos. Due to the language barrier Mr Mylanos wants the nominee to find 2 to 3 providers, inform him what they cover, and Mr Mylanos will make the final decision as to which one will be used. Mr Mylanos stated that 95% of decisions will be made by Mr Mylanos.

4. At the hearing Mr Mylanos stated that the organisation will need to go to clubs in new regions starting with Brazil. Mr Mylanos has a list of contacts which the applicant needs to engage. There will be a road trip to meet with all clubs explaining the organisational, rules, accreditation for referees, code of conduct for participants and officials, hierarchy structures and how to build local structures. The nominee will be his interpreter and ‘second hand’ selling what WMAC is all about.

5. At the hearing Mr Mylanos stated WMAC needed to develop relationships to ensure the events will be ongoing. Once venues have been chosen there needs to be face to face meetings to discuss events about floor plans, storage, entry and exit. These meetings would be attended by both him and the nominee as he has the responsibility for running the events including training and accreditation. The nominee will work with the venues on Mr Mylanos’s instructions. He has templates of what is required from venues which will be given to the nominee. He will be at the meetings with local clubs and officials as part of the road trip and building relationships.

6. After the road trip the nominee is to finalise arrangements with clubs and service providers after Mr Mylanos has made final decisions on who is to be used and terms and conditions of any agreements. Once dates are confirmed a marketing plan needs to be developed focusing on club members who are the participants in competition events. When asked who is developing the marketing plan Mr Mylanos stated that he has a template for marketing, but each region needs a tweak. The nominee will give Mr Mylanos advice on the marketing plan for Brazil as he knows the region better than Mr Mylanos. Mr Mylanos knows the other regions better than the nominee. The nominee has the technical abilities for the online portal but not specifics about the other regions. Marketing will be ongoing for each event during the year and the nominee will be marketing in Brazil and eventually in Portugal. The nominee will continue to look after the portal and customers’ issues and leasing with India. He will be acting like a region manager providing the business plan comes to fruition and make revenues then he can be the region manager, but it is all performance based.

7. At the hearing the Tribunal asked how much of the organisation will be in Brazil. Mr Mylanos stated it will be equivalent to that volume in Australia which is currently 80% of events are in Australia. In Australia there are 18 events. Mr Mylanos stated that one or two events in Brazil will be better financially due to the numbers of participants.

8. At the hearing the nominee states he is on a 12 month contract as a field sales demonstrator for Calabra who provide services for CISCO. He will be setting up the operation in Brazil from scratch, liaising institutions that regulate martial arts Brazil, study regulations and provide information to the organisation and ensure they comply with rules. Assessing locations for tournaments, who will be needed to work there, developing policies and procedures, communicate with teams and participants an ensure whole event is completed with compliance. The Tribunal suggested that he would not be starting from scratch and the nominee stated different regulations and rules which need to be fitted into policies and procedures. The nominee also confirmed that Mr Mylanos will be working with him. The Tribunal asked if he had experience in this type of events management and the nominee stated that his experience was an operations and procedures analyst for a telco. The nominee confirmed that his Business Analyst experience related to ICT or IT. His role was to redesign process across all departments ensuring the procedures were being communicated to sales team and other departments. Also, to review any processes and procures to ensure effective. He helped IT with processes within Departments, work roles and transaction and describe the flow or delays so as to improve the Department.

9. At the hearing the nominee stated that he will be reviewing the process and operations in Brazil and in Portugal because of the language. Also, he will provide improvements across all other countries where they have tournaments. After tournaments he will review with team any feedback which areas have to be improved. Also reviewing any new regulations.

10. On the evidence the Tribunal is satisfied that the tasks to be performed in the position of Organisation and Methods Analyst (Organisation and Methods Analyst ANZSCO 22471) correspond to the tasks of an occupation specified in the relevant legislative instrument, IMMI 17/080. There are no applicability requirements for the occupation listed in the relevant instrument.

11. Having considered all of the available evidence, the Tribunal is satisfied that the applicant has a genuine need for the nominee to be employed as a paid employee in the position of Organisational Management Facilitator under the nominator’s direct control particularly as the business expands into Brazil and other countries.

    Training

12. At the time this application was lodged with the Department in December 2017, reg 5.19(4)(h)(i)(B) required the nominator’s business to meet the training requirements specified in an instrument if it had operated for at least 12 months, or to have an auditable plan for meeting the requirements if it had operated for less than 12 months. Based on the evidence before it, the Tribunal is satisfied that the nominator’s business has operated for at least 12 months.

13. The Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) repealed and replaced reg 5.19 for nominations made on or after 18 March 2018. Under the new version of reg 5.19, training requirements for a Subclass 186 visa in the Direct Entry (DE) stream were included in reg 5.19(10)(c). However, the transitional provision in cl 6705(1) of Schedule 13 to the Regulations provides that despite these amendments, the pre-18 March 2018 version of reg 5.19, including any instruments made under it, continue to apply to nomination applications made before 18 March 2018.

14. The Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) repealed the training requirements in regs 5.19(5)(i) (for temporary residence transition) and 5.19(10)(c) (for DE) from 12 August 2018. However, the transitional provisions in cl 7602(6) of Schedule 13 to the Regulations provides that those paragraphs, as in force immediately before 12 August 2018, continue to apply in relation to nomination applications made before that date. As the nominations made before 12 August 2018 are not subject to the new ‘nomination training contribution charge’, the Explanatory Statement to the amending regulations clarifies that it is appropriate that the criterion requiring compliance with training requirements continue to apply to those pre-12 August 2018 nominations.

15. Having established that the training requirements in reg 5.19(4)(h)(i)(B)(I) apply to this nomination, the Tribunal finds that these regulations must be met at the time of the Tribunal’s decision as the criteria in the pre-18 March 2018 version of reg 5.19 all fall to be considered at the time of decision. IMMI 17/074 is the instrument made under reg 5.19(4)(h)(i)(B)(I) that applies to nominations made on or after 1 July 2017.

16. At the hearing Mr Mylanos stated that Mr Deng started with the applicant around October 2022 as a teacher in the applicant and a technical commissioner, chief referee trainer. He is employed on a full time basis on $65,000 plus the superannuation guarantee and a COVID payment of $10,000 was used to employ him.

1. On 10 October 2022, the applicant provided a submission in relation to the applicant meeting the training requirements together supporting documentation. It was submitted that the nominator was seeking to meet the requirements in Training Benchmark B, it is required to have recent expenditure to the equivalent of at least 1% of the payroll of the business, in providing training of employees of the business who are Australian citizens or permanent residents. Further, the business must show that the training is related to the purpose of the business.

2. In a letter dated 14 September 2022 and provided to the Tribunal, the applicant submitted that WMAC and AMAC conduct mandatory accredited training for each official before every tournament in Australia and other countries. It was further submitted that Mr Deng participates in the training before every tournament as required by all officials. The cost of the training is $100 but as Mr Deng is an employee the $100 fee for each training session is covered by the business as a staff training expense. The Tribunal had been provided earlier a copy of Mr Deng’s Australian citizenship certificate dated 25 October 1988.

3. Provided to the Tribunal were invoices issued by WMAC to the applicant with attached remittance advices indicating payment by the applicant for training of Mr Deng together with a registration list for the training provided to Mr Deng which included Mr Deng. The applicant provided a calculation table for applicant’s training expenditure based on the invoices which is set below.

Date	Inv #	Training Amount
20/6/21	554	Freestyle sparring kata scoring procedures	$110
12/12/21	599	Full judges procedures	$132
6/3/22	611	Morning entry procedures and registration of athletes	$110
1/5/22	615	Morning entry procedures and registration of athletes $110
19/6/2	2 628	Referee code of behaviour and methods	$110
TOTAL FOR 2021/2022	$572
17/7/22	637	Referee conduct procedures and marshalling	$110
24/7/22	649	First aid assessment and calling procedures	$110
7/8/22	678	Contact sparring scoring methods	$110
18/9/22	698	Kata scoring methods	$110
TOTAL TO DATE FOR 2022/2023	$440
12/12/21	599	Full judges procedures	$132
6/3/22	611	Morning entry procedures and registration of athletes	$110
1/5/22	615	Morning entry procedures and registration of athletes	$110
19/6/22	628	Referee code of behaviour and methods	$110
17/7/22	637	Referee conduct procedures and marshalling	$110
24/7/22	649	First aid assessment and calling procedures	$110
7/8/22	678	Contact sparring scoring methods	$110
18/9/22	698	Kata scoring methods	$110
TOTAL FOR PREVIOUS 12 MONTHS	$902

1. It was submitted that WMAC is the accreditation for all WMAC tournaments and officials and all training is completed in accordance with standards using curriculum and testing procedures developed and authorised by WMAC. Provided were four examples of course outlines prepared for AMAC by National Referees Commission Australia and a letter setting out the training benchmarks. Also provided were blank competency assessment sheets and blank practical and theory exams.

2. The Tribunal, on the provided evidence, is satisfied that Mr Deng has participated in the training as indicated in the above chart.

3. ‘Recent expenditure’ is defined in the relevant legislative instrument as:

   …expenditure made in the previous financial year or the previous 12 months, as evidenced by a receipt for the payment(s) or a contract for employment of the relevant individual for whom salary payments are being included within expenditure that can count towards the benchmark.

4. The Tribunal, on the evidence, is satisfied that and that the value of the training is as stated in the above chart. In particular the Tribunal is satisfied that the expenditure which satisfies the definition of ‘recent expenditure’ and is for training Mr Deng was for the financial year ending 30 June 2022 being $440 and the expenditure over the past 12 months being $902.

5. The relevant instrument also defines ‘applicable expenditure’ and ‘inapplicable expenditure’ Relevantly, applicable expenditure includes:

   a) payments for Australian employees to undertake a formal course of study, including any reasonable and necessary associated costs (e.g. costs of travelling to the training venue or access an online training programme);

6. Further, relevantly inapplicable expenditure

   (a) on the job training that is not otherwise identified above as applicable expenditure for Training Benchmark B;
   (b) training that is not relevant to the industry in which the business operates;
   (c) training undertaken by persons who are principals in the business or their family members;

7. At the request of the Tribunal for further detail the applicant provided a statement dated 17 October 2022 stated that the training consists of an online theoretical component including an examination an examination prior to a practical assessment at a tournament. It further stated that if a participant fails the online theory component they ae unable to participate in the practical assessment, If they pass the theory component the practical assessment is at the next tournament suitable to their level of training. The statement then indicated that the practical training takes place during a full day of competition where a participant is assessed by an instructor at a real tournament setting to put into practice the theory learned to qualify as a judge or a referee at a specific level.

8. The statement indicated that the training is overseen by the National Commissioner, Mr Luke Trotz who assisted by senior instructors: Mr Doug Turnbull; Ms Margaret Le’ Ms Debra Swanson; Mr David Duth; and Mr Pete Mylonas. Mr Mylanos is the only director of the applicant involved in the training, therefore, the Tribunal is satisfied that the training is provided by persons who are not principals of the business and, therefore, all the expenditure over the past 12 months of $902 is applicable expenditure.

9. The ‘payroll,’ as defined in IMMI 17/074, and relevant to the circumstances of this review is the sum of the PAYG and superannuation.

10. The Tribunal accepts on the payslips for Mr Deng provided to the Tribunal and the submission that Mr Deng’s salary inclusive of superannuation is $46,799.90 for the per year. Therefore, one percent of this amount is $468 per year and the Tribunal is satisfied that the expenditure by the applicant over the last 12 months on training of its Australian citizen employee is $902 which is greater than 1% of the applicant’s payroll.

11. Accordingly the requirements of reg 5.19(4)(h) are met.

12. 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

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

Namoi Dougall

Member

ATTACHMENT - Extracts from the Migration Regulations 1994

5.19Approval of nominated positions (employer nomination)

…

1. The application must:

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

   (aa) 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; and

   (b)be accompanied by the fee mentioned in regulation 5.37.

…

Direct Entry nomination

1. The Minister must, in writing, approve a nomination if:

   (a)the application for approval:

   (i)       is made in accordance with subregulation (2); and

   (ii)      identifies a need for the nominator to employ an identified person, as a paid employee to work in the position under the nominator’s direct control; and

   (b)the nominator:

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

   (ii)      directly operates the business; and

   (c)for a nominator whose business activities include activities relating 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; and

   (d)both of the following apply:

   (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

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

   (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

   (i)       are provided; or

   (ii)      would be provided;

   to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

   (f)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; and

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

   (h)either:

   (i)       all of the following apply:

   (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

   (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

   (B)either:

   (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

   (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

   (ii)      all of the following apply:

   (A)the position is located in regional Australia;

   (B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

   (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

   (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

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

   (F)a body that is:

   (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (II)located in the same State or Territory as the location of the position;

   has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).