Nambour Yardina United Soccer Club Incorporated (Migration)

Nambour Yardina United Soccer Club Incorporated (Migration) [2022] AATA 2566 (12 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Nambour Yandina United Soccer Club Incorporated

REPRESENTATIVE:  Ms Susan Jane Battistin (MARN: 0639290)
CASE NUMBER:  1909428
HOME AFFAIRS REFERENCE(S):          BCC2018/1164325
MEMBER:De-Anne Kelly
DATE:12 June 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 June 2022 at 2:26pm
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Sports Coach – genuine position – employment for at least two years – improved business and financial position – terms and conditions of employment no less favourable – nominee working in the position – extensive recruitment program – decision under review set aside
LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19
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 27 March 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 12 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(4)(a)(i) of the Regulations because the applicant could not demonstrate a need for a paid coach as an employee for at least the next two years and ongoing.
The applicant appeared before the Tribunal on 10 May 2022 to give evidence and present arguments.
The applicant was represented in relation to the review by Ms Susan Battistin. The agent submitted documents very late and close to the hearing and when asked whether she was aware of the Presidents direction on submitting documents seven (7) days prior to the hearing. The agent advised she was aware of the Direction. The Tribunal considers it is the responsibility of a professional agent to advise clients well ahead of any possible hearing that they should prepare relevant documents and forward them to the agent such that they can be uploaded in a timely fashion. This is in the best interests of the agent’s clients since it affords the Tribunal time to carefully assess information and ensure that any concerns are brought to the applicant’s attention such that they can address the concern. This is fundamental to ensuring procedural fairness for all applicants.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination
Adjournment and extension of time.
The Tribunal adjourned the hearing for 20 minutes to enable it to peruse the documents submitted late before the hearing. The Tribunal apologised to the applicants for this delay.
Certificate
The Tribunal raised the Certificate from the Department with the applicant and gave them the gist of the information which was a concern that the visa applicants brother had established a private coaching company and the visa applicant may be working for it rather than the nominator.
The applicant advised that they had indeed started a coaching business and that one of the brothers had returned to the UK, Kyle worked with the coaching company and the nominee works for the Club. The Tribunal accepted this explanation.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
On 12 March 2018, the applicant lodged a Regional Sponsored Migration Scheme employer nomination – Subclass 187 in the Direct Entry Stream for the position of Sports Coach on $53,739 per annum to be employed at Yandina QLD 4561 in favour of Mr Korey Joe Nix.
Mr Garry Wasmund, the President represented the Club and gave an overview. The Club was established 50 years ago and in 2021 won a premiership for the first time. Mr Wasmund had been the President some time ago and in the interim the club went backwards as they were not getting players and coaches so when he was invited back as President, he decided to look at other clubs such as Noosa and Buderim and decided to put effort into the juniors. In the past 5 years the Club has doubled in size and received congratulations from Football Qld because they have more women in football than any other club in Qld. The Club has grown stronger and stronger. They were in financial trouble but recently finished with $100,000 in the bank because of new players and teams. They have turned the financial situation around by getting sponsors to the amount of $70,000 and this has been down to the nominee as coach. They have also taken over the local Saturday morning markets and this has been a good source of income. Football Qld has asked for them and the nominee to coach several football clinics.
Mr Wasmund was a genuine, enthusiastic and forthright person and said they aim to make a big difference to the lives of young people through the little athletics and sports and nippers. He is convinced that this grows the community to have all these sports. The Club ran an indigenous program whereby they auctioned offs strips and raised $3,000 for indigenous scholarships such as paying for shoes and clothing for students. It is a great opportunity for young people.
The application is compliant: reg 5.19(4)(a)
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.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 12 March 2018 and was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.
The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Korey Joe Nix was identified in the nomination application and this indicates there is a need for the position.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant has financial statements from FY 2020 to FY 2021 as evidence.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
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.
There is no evidence that the business labour hires, and the President confirmed this in the hearing.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 5.19(4)(d)
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.
The applicant has provided financial information that shows a sound profit for the period 1 October 2021 to 3 May 2022 as shown below. The applicant has retained earnings and sound nett assets.

1Oct 2021 - 3 May 2022 2021 2020 2019

Income        309,258     435,965     410,699 460,398

Coaching fees          44,767 61620      59,664 124,910

Expenses        264,429     477,244     346,285 476,868

Profit          44,829 -    41,279      64,414 -   16,470

Nett assets     162,350     203,630 139,215

Retained earnings     162,350     203,630

An employment contract 8 November 2019 does not expressly exclude the possibility of an extension of employment beyond the designated two years from the grant of the visa.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
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.
A Market Salary Analysis was provided drawing on Seek.com information which showed that the average salary for a Sports Coach was between $55,000 to $65,000 and the Tribunal considers that the salary for the nominee of $57,500 per annum is a reasonable salary.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
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.
The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the nominator or a person associated with the nominator. This was confirmed by the President at the hearing.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
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.
The Tribunal can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the President at the hearing.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
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 in a legislative instrument, 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 locally 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.
Position in regional area – r.5.19(4)(h)(ii)(A)
The Tribunal needs to determine if the position is in regional Australia. The business is located in Yandina QLD 4561. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore the position and business are located in regional Australia. The applicant can choose therefore to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant has chosen to meet r.5.19(4)(h)(ii) which provides for the second dot point above.
Accordingly, r.5.19(4)(h)(ii)(A) is met.
Genuine need for the position r.5.19(4)(h)(ii)(B).
The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control.
The nominee has been working in the position to the present day and this was evidenced by payslips for the nominee. From the evidence given by the President there is a genuine need to employ the nominated position and it has transformed the fortunes of the Club in many respects. Particularly noteworthy was the investment this Club makes in developing and nurturing young people in the area and building community.
The Tribunal finds for the reasons above that there is a genuine need for the nominator to employ a person, identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control.
Accordingly, r.5.19(4)(h)(ii)(B) is met.
Cannot be filled. r.5.19(4)(h)(ii)(C)
The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The Tribunal finds that the applicant undertook an extensive recruitment program on Indeed from 4 September 2019 to 3 October 2019 and on Careerone from 5 September 2019 to 4 October 2019. They have provided an extensive and comprehensive list of those who applied and most were unsuitable because they were overseas or did not hold qualifications such as FFAC licence.
Accordingly, r.5.19(4)(h)(ii)(C) is met.
Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)
The Tribunal has carefully considered the evidence and the Position Description provided and finally determined that the tasks of the position generally correspond to the tasks of a position specified by the Minister in an instrument being the position of Sports Coach. The fact that the coach has enabled the Club to win a premiership; has more players and undertakes clinics for Football Qld is very sound evidence that the position is that of a Sports Coach.
Accordingly, r.5.19(4)(h)(ii)(D) is met.
Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)
The nominee has among extensive experience and qualifications a Senior Coaching Certificate from the Football Federation Australia. The Tribunal finds that the occupation is applicable to the person, identified under subparagraph (a)(ii) in accordance with the specification of the occupation.
Accordingly, r.5.19(4)(h)(ii)(DA) is met.
Business operated at that place. r.5.19(4)(h)(ii)(E)
The business of the nominator is located at Yandina QLD 4561 and is in ‘that place’ that was specified in the employer nomination.
Accordingly, r.5.19(4)(h)(ii)(E) is met.
Regional certifying body r.5.19(4)(h)(ii)(F)
Chamber of Commerce and Industry Queensland CCIQ as the regional certifying body RCB specified in the Ministerial instrument on 21 November 2019 certified the application as meeting r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) and has therefore advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraph (B) and (C).
Accordingly, r.5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of r.5.19(4)(h) and r.5.19(4) are met
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
De-Anne Kelly
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)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
(4)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).

[2022] AATA 2566

12 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

1Oct 2021 - 3 May 2022	2021	2020	2019
Income	309,258	435,965	410,699	460,398
Coaching fees	44,767	61620	59,664	124,910
Expenses	264,429	477,244	346,285	476,868
Profit	44,829	- 41,279	64,414	- 16,470
Nett assets	162,350	203,630	139,215
Retained earnings	162,350	203,630