1410837 (Migration)

1410837 (Migration) [2015] AATA 3614 (5 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Youth With A Mission Newcastle Inc
CASE NUMBER:  1410837
DIBP REFERENCE(S):  BCC2013/2162475
MEMBER:Jennifer Ciantar
DATE:5 November 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 05 November 2015 at 10:09am

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 Immigration on 30 May 2014 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 22 December 2013. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.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: r.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 r.5.19(4)(a)(ii) and r.5.19(4)(e) of the Regulations because the delegate was not satisfied that the applicant had substantiated a need for another Minister of Religion in Newcastle or that the nominee would not be required to help fund his own remuneration package.
The applicant provided the Tribunal with additional information. It was submitted that Youth with a Mission (YWAM) has been operating in Newcastle since 1992, working locally with youth. YWAM has over 1100 operations in 180 countries, including 18 locations in Australia, of which Newcastle is one of the largest concerning providing training. In 2015, YWAM Newcastle trained 190 students. YWAM Newcastle currently has 10 Ministers of Religion providing services that include leadership, preparing and conducting services, leadership of social and welfare activities, preparing and delivering religious teaching, providing religious guidance for members, leading and supervising prayer groups and worship services, and providing spiritual comfort and guidance to members in need. The Ministers working in Newcastle have specialisations and the positions include Senior Minister, Associate Ministers, training and pastoral team, youth pastoral team, residential community pastoral team, worship Minister and member care Minister.
The nominee is a Minister of Religion with a specialisation in worship and this position has existed in Newcastle for around 10 years but the holders of the position have come and gone. The position requires someone with long experience as a worship Minister in a large YWAM campus or equivalent and who is qualified to train worship leaders in the accredited course, a Certificate IV in Worship, plus perform other duties as a Minister of Religion. The nominee, Mr Brian Adams, was appointed to the position in January 2014 and the proposed permanent appointment would be the same as the current arrangement.
It is also submitted that the terms and conditions of employment are no less favourable than would be provided to an Australian worker. The terms include payment of an annual salary of $52,000 plus superannuation. In January 2014, the nominee entered into an employment arrangement that provided remuneration in the form of accommodation, food and living costs, the value of which was equivalent to $49,300. The reference in the 2014 work agreement to the nominee being allowed personal leave for support raising was an administrative error. The nominee has not been required at any time to contribute towards his salary package. In January 2015, the applicant re-negotiated the employment arrangement with the nominee.
The applicant also provided graphs regarding annual growth trends, a campus development guide, organisational chart, financial statements for the year ending 31 December 2014, an employment agreement dated 4 April 2015, information about Ministers of Religion from the Job Outlook site, work agreements with the nominee dated 9 May 2014 and 15 January 2015, job description for the nominated position, and a description of the activities undertaken by YWAM.
The applicant appeared before the Tribunal on 8 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Brian Adams. The hearing was a combined hearing with the application lodged by the nominee, Rev Brian Adams (1412615).
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
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 r.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: r.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 must identify a need for the nominator to employ a paid employee to work in the position under their direct control.
From the material on the Department’s file, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the prescribed fee.
The applicant operates a church and has identified a need for a paid employee to work in the position of Minister of Religion. The Tribunal is of the view that r.5.19(4)(a) requires more than a statement or declaration that there is a need for the position. “Identify” is defined in the Macquarie dictionary as ‘to recognise or establish as being a particular person or thing; attest or prove to be as claimed or asserted.’ The Department was not persuaded that the application had established a need for the position as there was insufficient evidence of the claimed expansion of the church’s operations. However, the Tribunal has had the benefit of additional information regarding the scope of activities of the Church.
In regard to the need for the position, the applicant stated that the church needs a Minister who can teach Worship in the Certificate IV in Worship, offered by YWAM, which is a registered training organisation. YWAM is growing and this week there was an intake of 72 students. There are 75 full-time staff who live on campus as do most of students. Although training is a major focus, the Church also provides evangelism and Mercy ministries. There are 4 to 5 religious services each week. The nominee trains the worship leaders and also personally leads the worship. He also trains some church members to work in leadership roles overseas.
The nominee also visits the local community as there is a local congregation. The nominee’s role is broader than the staff and students in Newcastle and also extends beyond Australia as the training provided also enables students to work for YWAM overseas. In total, there are currently between 140 to 150 resident members and altogether, including members who are overseas for varying lengths of time, the congregation of YWAM Newcastle would be about 200 members. YWAM has provided 22 teams in 23 different nations and a team might work overseas for up to 4 months. Normally the young people recruited to YWAM will undertake the Certificate III course but there are various levels of involvement in YWAM. For example, a person might only attend a weekly meeting; alternatively, another member might live on site for up to 3 months.
The application also stated that YWAM has had numerous nominations approved by the Department and it currently employs five Subclass 186 visa holders. They sponsor many temporary visa holders and student visa holders. About half of the 75 staff are Australian or New Zealand citizens and about 25 to 30 members and staff, including students, are temporary visa holders. The Department conducted monitoring of some Subclass 428 visa holders three or four years ago and there was a positive outcome. However, at one point in time, a number of nomination applications were unexpectedly refused. Except for the matter before the Tribunal, YWAM responded by lodging new applications, and all were approved. However, as YWAM strongly disagreed with the refusal of this application, it instead lodged an application for review.
The Tribunal accepts that in the past, the Church has employed a Worship Minister. the nominee has now been working in the nominated position for more than a year and he previously occupied a similar position in YWAM in Perth. The Tribunal is satisfied that the applicant has identified a need for it to employ a Minister of Religion specialising in worship, under its direct control.
Accordingly, the Tribunal finds that the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The material before the Tribunal indicates that YWAM is registered as an 'Other Incorporated Entity' with an Australian Business Number (ABN) and documents from the Australian Attorney-General’s Department state that YWAM is a recognised denomination. The applicant provided the Tribunal with financial statements for the year ending 30 June 2014, which show an income of $2,387,504. The application also gave evidence about the Church’s weekly activities. The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.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.
The material before the Tribunal indicates that the applicant operates a religious and charitable organisation and there is no suggestion that its business activities include those relating to labour hire to an unrelated business.
Accordingly, the Tribunal finds that the requirement in r.5.19(4)(c) does not apply in this case.
Term of employment of the visa holder: r.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 extension of the employment.
The Work Agreement provided to the Tribunal dated 15 January 2015 states that the duration of the appointment is 3 years. There is no express exclusion of extension of employment and the applicant gave evidence that the position is required indefinitely. The nominee has occupied the position since 2014 and the position is ongoing, indefinitely.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.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.
Although not bound by policy, the Tribunal had regard to the Department’s policy guidelines, as set out in its Procedures Advice Manual (PAM3) as at 30 June 2015 (after which changes were made relating to nominations of Ministers of Religion which are not relevant to the present case), which provides as follows:
116 Salary
Reg. 5.19(3)(e) and 5.19(4)(e)
The position must be offered a market salary rate.
Delegates can consider the relevant regulatory requirement to be satisfied if the nominating religious organisation:
·offers a subsistence wage that is at least equivalent to unemployment benefits, as well as provide board/lodging and any other non-monetary benefits as part of a package that can be equated in value to the minimum salary
or
·provides the nominee with all of their living needs, including board and lodging, and will meet all health, education, welfare and other costs incurred by the nominee, directly from the religious organisation's own funds, in a package that can be equated in value to the minimum salary.
Delegates cannot accept any arrangements where the nominee is required to help fund, wholly or partially, the salary package they will receive or, the nominee will not be paid any formal benefit by the religious organisation, despite the provision of food and board/lodging. The National Employment Standards webpage provides some further information on the employment standards expected.
The Department found that the applicant did not meet this requirement as the work agreement indicated that the nominee could use personal leave to conduct support raising. The Department was concerned that the nominee might be expected to help fund his remuneration package. The applicant claims that this clause in the agreement was an inadvertently included in the copy of the agreement provided to the Department but this clause had not been part of the 2014 agreement, which YWAM had with the nominee. In the past, some visa applications were approved although the relevant contract did contain the clause to which the Department objected concerning the use of personal leave or support raising. However, the applicant realises that the Department’s policies have changed and YWAM now ensures that no permanent resident applicants are involved in fundraising. Since the change in policy, the contract which the nominee signed has not contained this clause and it was an administrative error to have sent the old contract with the visa application.
In any case, YWAM has renegotiated the salary and the nominee is now paid a cash salary of $52,000 plus superannuation and there is no in-kind components. The organisation pays superannuation on behalf of the nominee and one other employee.
The applicant also provided the Tribunal with a copy of a Work Agreement YWAM has with another Minister of Religion, dated 13 April 2015. This Agreement states that the total remuneration package is $49,330 but it appears to mostly be in kind and not cash.
The Tribunal accepts that the nominee is the only Minister employed by YWAM who is paid in cash. The applicant has provided information about the salary payable to Ministers of Religion according to Job Outlook, and also according to the Baptist churches of NSW and ACT Stipend Recommendations for 2015. This information indicates that weekly earnings are between $983 and $1152, and the annual salary range is between $44,925 and $58,403 depending upon years of experience. The nominee is paid $52,000 which is within this range and which is more than the salary paid to equivalent Ministers at the same workplace.
The Tribunal therefore finds that the terms and conditions of employment applicable to the nominated position are no less favourable than those that are or would be provided to an Australian employee doing equivalent work in the same workplace in the same location.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.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 adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57 (2) and (3): r.5.19(7).
The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about YWAM Newcastle.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.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.
There is nothing in the Department’s records or otherwise to indicate that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of NSW relating to workplace relations.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training benchmarks r.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:
·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 IMMI 14/049), and certain specified training benchmarks will be met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.
The material on the Department and Tribunal files indicates that the applicant and position are located in Newcastle, which is not specified as a rural location in the relevant instrument. As a result, one of the requirements of r.5.19(4)(h)(ii) has not been met and the nomination must meet the requirements of r.5.19(4)(h)(i), as set out in the first dot point above.
The position
The ANZSCO description for this occupation is as follows:
UNIT GROUP 2722 MINISTERS OF RELIGION
MINISTERS OF RELIGION perform spiritual functions associated with beliefs and practices of religious faiths, and provide motivation, guidance and training in religious life for the people of congregations and parishes, and the wider community.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. The occupation in this unit group requires high levels of personal commitment and interest as well as, or in place of, formal qualifications or experience (ANZSCO Skill Level 1).
Registration or licensing may be required.
Tasks Include:
·preparing and conducting services of public worship and acknowledgments of faith
·preparing and delivering sermons, homilies and special talks, and planning music for services
·participating in the social and welfare activities of communities, encouraging people to be aware of their responsibilities, and organising participation in community projects
·conducting classes of religious instruction, and supervising prayer and discussion groups, retreats and seminars
·conducting premarital and family counselling and referring people to professional service agencies where necessary
·performing marriages, funerals and special memorial services according to tradition and ecclesiastical and civil law
·visiting members of the community in their homes, hospitals and other institutions to provide advice and religious comfort
·keeping records as required by the church and civil law
Occupation:
272211 Minister of Religion
Performs spiritual functions associated with beliefs and practices of a religious faith, and provides motivation, guidance and training in religious life for the people of a congregation or parish, and the wider community. This occupation requires high levels of personal commitment and interest as well as, or in place of, formal qualifications or experience. Registration or licensing may be required.

The applicant provided the Tribunal with a job description for the nominee which states that his duties are:
·     participate fully in the religious, spiritual and the evangelistic life of youth with a mission – Newcastle, including to lead and pastor other members in religious outcomes of the mission;
·     preparing conduct events, seminars, gatherings, conferences, services and retreats for the public proclamation of the Christian Gospel of faith, teaching, preaching and training in Christian faith and/or proselytising;
·     through the conducting of gatherings in local communities, participate in social welfare activities encouraging people to be aware of their responsibilities and organised participation in community projects;
·     prepare and deliver teaching, preaching and training of a religious nature;
·     provide religious guidance and training participants of Youth with a mission;
·     conduct classes of religious instruction;
·     lead and supervise prayer groups, times of worship and pastoral care discussion groups;
·     provide advice and instruction to YWAM members on the development of Christian character, values and lifestyle;
·     provide spiritual comfort and guidance to members who are in need – spiritually, emotionally etc;
·     refer people to professional service agencies as needed;
·     operate as a senior leader of the organisation giving input into the vision, direction and strategies of the mission in evangelism and for filling the mandate of the organisation;
·     undertake administrative requirements – recordkeeping etc, as required by organisational requirements or law in support of organisational objectives;
·     conduct special memorial services, baptisms and communion.
There are also additional responsibilities and duties which include:
·     Preparation and the oversight of worship services for the YWAM Newcastle congregation of up to 150 people,
·     Providing ongoing development, pastoral care and oversight of a large team of worship leaders and musicians,
·     Conducting religious instruction at religious training program (Certificate IV in Worship), specifically to train up qualified Worship Leaders,
·     Maintain times of spiritual contemplation and Bible study preparation, and
·     Oversee the training of worship leaders and musicians in the weekly youth church program, in the religious courses held each quarter, and in the worship services for the 15 to 20 outreach teams sent overseas each year.
The Tribunal has considered the evidence provided about the nominee’s duties. The Tribunal has considered whether the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in the relevant instrument. The Minister has specified the occupation Minister of Religion in the relevant instrument by identifying the ANZSCO code of that occupation, 2722-11.
In regard to the nominee’s role, the nominee conducts services from time to time. Preaching and teaching are a major component of his job both in Newcastle and at other YWAM locations in Australia and overseas. He supervises evangelism locally and overseas and supports the leaders responsible for the evangelism. He carries out general pastoral care and counselling. YWAM has a greater role in pastoral care and counselling because of the residential component and this is why they require more Ministers. Because of his specialisation in worship, the nominee is in high demand from other YWAM locations to provide the worship training component in their courses. The church performs baptisms and conducts memorial services. The nominee also refers people to external counsellors. There are record keeping requirements which are quite extensive because the church is a registered training Organisation and is also a mandatory reporter. They also have to keep incident reports.
The nominee commenced working at YWAM in Newcastle in July 2014 and the applicant stated he has already seen an improvement in the worship culture; the nominee successfully motivates students to stay on and extend their roles. He has trained 14 worship leaders. The Tribunal accepts that the nominee performs most of the duties as set out in the ANZSCO guide excluding performing marriages and funerals. The Tribunal accepts that the tasks to be carried out in the position correspond to the ANZSCO description of the occupation of Minister of Religion, which is an approved occupation. The Tribunal is satisfied on the totality of the evidence, that the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation that is specified by the Minister in the relevant instrument.
Training benchmarks
The Tribunal now turns to consider whether the applicant meets the training requirements set out in IMMI 13/030. The Tribunal is satisfied that the applicant has operated for over 12 months, and thus must meet the training requirements for an established business, which can be summarised as follows:
·Training Benchmark A – recent expenditure, by the business, to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or
·Training Benchmark B - recent expenditure, by the business, to the equivalent of at least 1% of payroll of the business, in the provision of training to employees of the business.
The nomination application states that the gross payroll in the previous 12 months was $1233250 and that the gross expenditure on training of Australian citizens or permanent residents was $108,200. However, the basis of these figures is unclear and there are no corresponding financial statements before the Tribunal which contain these figures.
The applicant confirmed that the financial statement provided to the Tribunal indicates a payroll of approximately $12,000. However, as the nominee is now being paid in cash, the payroll item on the most recent financial statements would be higher. After the hearing, the applicant provided information to the Tribunal, which is that the payroll in the 12 months 1 November 2014 to 31 October 2015 was $40,556.97, as shown on the payroll activities report also provided. YWAM have provided information to show that it spent $6330.37 on training activities and it claims that as this exceeds 1% of the payroll ($405.56) the training benchmark is satisfied. In particular, in April 2015 YWAM gave 3 Australian workers scholarships of $1000 each to participate in YWAM courses and one of these workers undertook a course in Perth and the others undertook the courses in Newcastle. YWAM also paid for Ms Julianne af Petersens to attend “New Records Systems Training in Amsterdam. YWAM paid her flights accommodation and conference fees. In May 2015 YWAM paid the conference fees for Mrs Carolyn Stephenson to attend an ANZAC conference in Turkey. In September 2015, YWAM paid conference fees, flights and accommodation for Mrs Stephenson to attend a YWAM conference in Townsville. Associated receipts have been provided.
The Tribunal has considered the information provided and is satisfied that the scholarships totalling $3000, which were provided to 3 Australian citizens or permanent residents, in ASQA approved courses, meet the requirements of Training Benchmark B, as specified in IMMI 13/030. Accordingly the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.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.
Jennifer Ciantar
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
(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 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)       both 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;
(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 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 at a skill level of ANZSCO skill level 1, 2 or 3;
(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).

[2015] AATA 3614

5 November 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice