1413763 (Migration)

1413763 (Migration) [2015] AATA 3784 (4 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sydney Hwaebok Church
CASE NUMBER:  1413763
DIBP REFERENCE(S):  BCC2014/837377
MEMBER:David Dobell
DATE: 4 December 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination
Statement made on 04 December 2015 at 3:56pm

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 25 July 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 25 March 2014. 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 Direct Entry Nomination stream.
The delegate refused the application on the basis that the applicant did not satisfy r.5.19(4)(a)(ii) of the Regulations because they were not satisfied that there was a genuine need for the nominated position.
The review applicant church (‘the church’) was invited to appear before the Tribunal on 1 October 2015 to give evidence and present arguments. This was a combined hearing with MRD case no. 1415130. The applicant was represented in relation to the review by its registered migration agent, who also attended the Tribunal hearing. As it happened this hearing did not proceed.
After a complaint by the migration agent, the matter was reconstituted to the current member, who was able to make a favourable decision in this matter without the need for a hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CLAIMS AND EVIDENCE
When making the application the applicant provided evidence that the nominee, Ms Mi Jeong KIM would be the second Pastor at the Sydney Hwaebok Church, Pymble NSW. The following relevant documentary evidence was provided to the Department with the nomination:
·Submission of migration agent, 25 March 2014
·Church, Details of qualifications and skills required, 25 March 2014, signatory Moore BAE (Director of church)
·Church, statement of training and supporting evidence, 25 March 2014, Moore BAE
·Alphacrucis College, receipt for $2000 paid to the Ministry Scholarship Fund (training body)
·Church, statement regarding the market salary rate for the position, 25 March 2014, indicating the applicant has a Ministry team of 2 Pastors, Mr Shinil KIM and the nominee, and proposing an annual salary of $54,600, Moore BAE
·Church, payslips, Pastor Shinil KIM, indicating he was receiving a base salary of $54,600, as at February/March 2014 & Australian passport front page for the pastor
·Church Payslips indicating the nominee had been employed as a pastor by the applicant and was receiving a base salary of $52,000, February /March 2014
·Church, Employment certificate, 25 March 2014, setting out the nominee’s duties and that she had been working in the Pastor position since 15 April 2013
·Church, Individual Employment Agreement executed on 25 March 2014 between Moore BAE and Mi Jeong KIM, with duties attached
·Church, Individual Employment Agreement executed on 1 July 2013 between Moore BAE (Director of church) and pastor Shinil KIM, with duties attached
·Sandhurst Trustees, 11 March 2014, super contributions, August December 2013, January 2014
·IMAN Australian health plans, 11 March 2014, current health insurance
·Church Weekly Schedule for Pastor Shinil KIM
·Church Weekly Schedule for Nominee
·List of 193 church members
·Notification of approval for the nomination of a religious worker position, for which the nominee was granted a Subclass 428 visa and subsequently a Subclass 401 visa, and church sponsorship approval to 15 April 2016
·Church, statement regarding the duties of Mr Shinil Kim and the nominee, 8 July 2014, Moore BAE,
·Church, Organisational Chart, 25 March 2014, Moore BAE
·Photographs of the ministry and missionary work
·ABN information regarding the church
·ABR information regarding the church
·Australian Government, 8 February 2013, charity status, church
·Australian Charities & not for profits Commission, church registration, 3 December 2012
·NSW Fair Trading, Certificate of Incorporation as an Association, church, 26 November 2012
·Westpac, account statements, church, 2014
·BAS, church 2013/2014
·LCIS, Church insurance, 23 May 2013
·Church Financial Statements, 2012/13
·Pymble Uniting Church agreement, with church, 3 April 2013, to use premises
·Kostar Accounting, 10 March 2014, Gi Soo Jang, reg. accountant, stating that the church is able to pay the remuneration package offered to the nominee
·Church information pamphlet in Korean (untranslated)
·Uniting Church information
The nomination stated that the applicant will be paid $54,600pa, the same as the other Australian citizen pastor.
The delegate formed the view that as the church was new, and the congregation was relatively small, and that the majority of their activities occurred in small groups in the houses of the two pastors, and that there was no good reason why the church needed a separate pastor for women and men, they were not satisfied the church has a need for two pastors. Thus r.5.19(4)(a)(ii) was not met.
The applicant’s new representative provided a submission to the Tribunal dated 27 September 2015, referring to the following:
·Statement that the nominee undertakes the Ministry work when Mr Shinil Kim is overseas on missionary work and she undertakes the Pastor’s duties on a weekly basis. Her duties are set out in the statement. While the place of worship is Pymble Uniting Church, the nominee may also serve her members at various other sites, conducting prayer meetings and children’s playgroups. Mr Shinil Kim has taken responsibility of the weekend worship and overseas missionary work. It is asserted that the church is growing
·Photographic evidence of the Mr Shinil Kim on overseas missionary work in the Philippines, South Korea and Vanuatu
·Weekly schedule of the nominee’s duties, indicating she undertakes church related duties for about 40 hours per week
·Church membership made up of 141 adults, 45 youth (20-25), 8 teenagers, and 12 children (Total 206 church members)
·The nominee’s skills assessment by VETASSESS and her resume
·Letter of support from Rev Hugh Park
·Confirmation of the nominee’s role
·Nominee’s certificate of employment
·Evidence in relation to the overseas missionary work undertaken by the nominee
The following new documentary information was also provided by the representative relating to the church, as referred to above:
·Vanuatu Spiritual Centre, regarding church donation of $48,000 in total, and photos
·Westpac bank statements, church accounts, 2014, 2015
·Overseas Missionary information, Philippines, South Korea, Vanuatu
·New weekly Schedule for the nominee
·New list of church members
·Vetassess, positive skills assessment, nominee, as Minister of Religion, 16 August 2013
·United Church in Australia, Thornleigh, reference for nominee, 25 September 2015, Rev Hugh Park
·Church, certification of employment, 6 September 2015, Moore BAE
·Church, Confirmation of role of nominee, 10 August 2015, Pastor Shinil KIM
·Church, Certificate of Appointment of nominee, 17 May 2015, Moore BAE and pastor Shinil KIM, indicating that on 5 April 2015, the applicant’s term of appointment was renewed by the church council, from 17 May 2015 to 17 May 2018, at a salary of $58,000 per year. Further, that on a permanent visa being granted salary shall be $62,000. On 10 May 2015 the church confirmed the appointment was full-time and the possibility of renewal is not excluded
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)(i) and r.5.19(2)
Regulation 5.19(4)(a)(i) requires that the application for approval must comply with r.5.19(2), which requires that the application for approval be in the approved form and must be accompanied by the prescribed fee. The Tribunal is satisfied that this is the case here.
The application is compliant: r.5.19(4)(a)(ii)
This requires that the application for approval also identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal notes Department policy on this, which states in part:
13.2    Need for a paid employee
The assessment of the 'need for a paid employee' comprises 2 parts:
•    establishing the need for an employee (that is, there is a genuine vacancy for the nominated position) and
•    ascertaining that the relationship between the nominator and the nominee is that of employer and employee.
The nomination does not have to specify the nominee, as regulation 5.19(4)(a)(ii) does not require the nominee to be known throughout the nomination stage. The employer only needs to identify a nominee before, or at the time, the associated visa application is made.
Whilst the delegate decided that there was not a genuine need for a second pastor (minister of religion), the Tribunal is of the view that this is not what this provision requires of a decision maker.
The Tribunal considers that this provision is a procedural requirement only. It merely requires that the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, which the church has clearly done in the application.
In support of such an interpretation is the wording of the similar requirement in relation to regional matters. However, this states clearly that there must be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B).
This provision clearly states that genuine need must be established in relation to regional matters. However there is no such requirement in relation to non-regional matters, such as this.
If r.5.19(4)(a)(ii) was concerned with establishing a genuine need, and applies to both regional and non-regional nominations, then r.5.19(4)(h)(ii)(B) would have no work to do in relation to regional matters.
The Tribunal is prepared to follow Departmental policy, but only where it is consistent with the law. In this case, the Tribunal does not consider the policy is consistent with the wording of the requirement in r.5.19(4)(a)(ii).
In the event that the Tribunal is wrong about this conclusion, it considers that the church has provided a large amount of documentary evidence, as set out above, which goes to establishing the genuine need for a second pastor for its growing church of around 200 people.
In respect of the delegate’s conclusions, the fact that the church is relatively new, and the congregation is relatively small, and that the majority of their activities occurs in small groups in the houses of the two pastors is not determinative of the question. Neither is the fact that the church requires a separate pastor for women and men.
How each individual church operates is up to that church, as is the issue of the number of pastors it requires. If a church wants pastors for the separate sexes then that is up to them. If evidence is provided that there are sufficient tasks and activities for a second pastor, and they have in fact been doing that job for some time, as in this case, then the evidence would suggest that there is a genuine need for two pastors.
Thus r.5.19(4)(a)(ii) is met.
Accordingly, the requirement in r.5.19(4)(a) is met as a whole.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
From the financial and other documentary evidence provided the Tribunal is satisfied that the church is actively and lawfully operating in Australia and directly operates that ‘business’.
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.
As this is not a labour hire situation, the requirement in r.5.19(4)(c) does not apply here.
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 Tribunal refers to the latest employment contract provided by the applicant church, dated 25 March 2014, and the Certificate of Appointment of nominee dated 17 May 2015, and notes that the term is full-time permanent for a minimum of 2 years fulltime and does not exclude an extension, and that this was affirmed by the church council on 10 May 2015.
The Tribunal is also satisfied from the financial statements provided and the accountant’s letter that the applicant church will be able to pay the nominee her salary for at least the next 2 years.
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.
This being a church, the employment arrangements are a little different to the average business. Nevertheless, there is Pastor Shinil KIM, who is an Australian citizen and employed as a pastor with the church, so he is the point of comparison for this provision.
In this church, the original documentary evidence suggested that each pastor would be paid the same, $54,600 pa. The Tribunal has each pastor’s job contract before it and they appear the same.
However, the recent Certificate of Appointment of nominee dated 17 May 2015, states that from 17 May 2015 to 17 May 2018, the nominee will be paid a salary of $58,000 per year, and that on a permanent visa being granted, salary shall be $62,000 pa.
The Tribunal finds these to be agreed amendments to the terms and conditions of the nominee’s original job contact dated 25 March 2014. The Tribunal has no information on what has happened to the other pastors’ salary, and whether that has increased also.
As to the other terms and conditions in the two job contracts, the Tribunal is satisfied that they are the same and that there is reference to the National Employment Standards, and that they also contains a position description as part of the contract.
Despite not knowing whether the other pastor is now being paid more than $54,600, the Tribunal is satisfied that the requirements of r.5.19(4)(e) are met. This is because the law only 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.
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).
There is nothing before the Tribunal to suggest there is any adverse information. 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 before the Tribunal to suggest there is an unsatisfactory record of compliance. 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 alternative requirements, depending on whether this is a regional or non-regional application. There is no suggestion that this is a regional application, the position being based in Sydney, so r.5.19(4)(h)(i) would apply here.
First the Tribunal must be satisfied that 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 the relevant sub-subparagraph.
The Tribunal is satisfied that Minister of Religion is specified in the relevant instrument - IMMI 14/049.
Next is the training requirement. As the Church had operated for at least 12 months at the time of nomination, being established on 26 November 2012, it must meet the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in the relevant instrument- IMMI 13/030, under r.5.19(4)(h)(i)(B)(1).
This states that the training benchmark for an established business for employees who are Australian citizens and Australian permanent residents and for the purpose of the business is:
A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.
OR
B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
The Tribunal notes Department policy here in relation to this requirement;
24.7 Training provisions
If the nominated occupation is that of Minister of Religion, the nominator is not required to meet the training requirements specified in regulation 5.19(4)(h)(i)(B).
Again, the Tribunal is prepared to follow Departmental policy, but only where it is consistent with the law. In this case, neither the regulations nor the instrument specifically provide for any exemptions for certain types of nominators. Hence, the Tribunal is of the view that this provision must apply to the applicant church.
The Tribunal notes the statement as to training arrangements dated 25 March 2014, and the attached receipt, and the financial statements before it.

The Tribunal accepts that there is only the one paid Australian citizen/permanent resident employee at this point in time. Turning to the financial evidence, being the financial statements for 2012/13, the training obligation at the time of nomination, at 1% of payroll, is $276, whereas the 2013 financial statements show $1,200 being spent on training, which is clearly more than 1%.
More recently, on 3 July 2013 (being part of the 2013/14 financial year), $2,000 was paid to Alphacrucis College (ministry scholarship fund), the receipt for which states it was in regards a 186 ENS visa training benchmark A contribution, which exceeds the 2% to an industry fund in the 2013/14 year, as 2% of $54,600 equals $1,092.
In light of the above evidence the Tribunal is satisfied that recent training expenditure by the church meets the training benchmarks. Accordingly the requirements of r.5.19(4)(h)(i) are met, and hence r.5.19(4)(h) is met as a whole.
All relevant requirements of r.5.19(4) being met, the Tribunal is satisfied that the applicant church meets the requirements of r.5.19 for approval of the nomination of the position of minister of religion in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
David Dobell
Member

ATTACHMENT
EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19 Approval of nominated positions (employee 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 3784

4 December 2015

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