1417479 (Migration)

[2015] AATA 3103

1417479 (Migration) [2015] AATA 3103 (7 July 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT:  Destiny Church

MRT CASE NUMBER:  1417479

DIBP REFERENCE(S):  BCC2014/1332344

TRIBUNAL MEMBER:  Glen Cranwell

DATE:7 July 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 07 July 2015 at 3:03pm

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 Immigration on 6 October 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).

2. The applicant applied for approval on 29 May 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).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(i) of the Regulations.

5. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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)

8. 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.

9. While the delegate refused to approve the nomination on the ground that r.5.19(4)(a)(i) was not met, the evidence before the Tribunal is that that the application for approval was made on the approved form and was accompanied by the prescribed fee.

10. The applicant operates a church and has identified a need for a paid employee to work in the position of Minister of Religion.  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

    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.

    Skill Level: 1

    Specialisations:

    Aboriginal Ceremonial Celebrant (Aus)
    Chaplain
    Imam
    Monk
    Priest
    Rabbi
    Salvation Army Officer

11. The applicant has done itself no favours in the description of the nominee’s duties contained in the “My role” document attached to the contract of employment.  It describes the nominee’s role in terms of being an itinerant revivalist in “Downpour Ministries”, and lists his duties as “Raising Up” specified persons.  This language is inaccessible to many outside religious circles.

12. That said, the Tribunal has been provided with a number of substantially identical statutory declarations describing his duties as follows:

    ·preparing and conducting services of public worship and acknowledgements of faith;

    ·preparing and delivering sermons, homilies and special talks, and planning music for services;

    ·conducting classes of religious instruction, and supervising prayer and discussion groups, retreats and seminars;

    ·providing prayer ministry to individuals during services.

13. These duties are essentially in the terms of the ANZSCO description set out above.  Evidence was provided in relation to the donations received by Downpour Ministeries and the applicant’s ability to pay the nominee’s salary.

14. On the basis of the evidence before it, the Tribunal is satisfied that the nomination identifies a need for the nominator to employ a paid employee to work in the position under the nominator's direct control.

15. Accordingly, 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)

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

17. The applicant’s accounts indicate that it is actively and lawfully operating a business in Australia and directly operates that business. The requirement in r.5.19(4)(b) is thus met.

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

18. 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 nothing before the Tribunal to indicate that the applicant is involved in hiring of labour to other unrelated businesses. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

19. 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. A copy of the terms and conditions of employment provided to the Department states that the nominee’s employment will be for a minimum of 2 years on a full-time basis. There is no express exclusion of an extension of appointment in the agreement. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

20. 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.

21. The nominee’s base salary is $47,360.The applicant provided evidence   At the Tribunal’s requests, evidence was after the hearing that other Australian pastors at the same church in the same location earned base salaries of $43,423 and $44,847.

22. The Tribunal considers that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at 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)

23. 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).

24. In this case, there is no known adverse information relevant to the applicant or a person associated with the applicant within the meaning of r.2.57(2) or (3). Accordingly the requirements of r.5.19(4)(f) are met.

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

25. 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.

26. There is no evidence before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff. In the circumstances, 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)

27. 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 (specified in IMMI 13/020); 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 ANZCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.

28. In this case, a regional certifying body has not advised the Minister about certain matters relating to the position. 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) to be approved.

    The position

29. 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. As set out above, 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.

    Training benchmarks

30. Under the ‘training benchmarks’ in the relevant instrument, an applicant is “not required to demonstrate that they are an industry leader in training”, but the applicant is “required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents and is related to the purpose of the business”: IMMI 13/030.

31. The following expenditure is specified:

    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.

32. The legislative instrument sets out the types of expenditure which can and cannot count towards meeting Benchmark B.  

33. At the Tribunal’s request, the applicant provided evidence that its total payroll between July 2014 and June 2015 was $146,013.  It also provided evidence that its expenditure on training for Australian employees during this period was $1,520.  As the training expenses are greater than 1% of the payroll, the Tribunal accepts that the applicant meets the training benchmarks set out in the relevant instrument. 

34. Accordingly the requirements of r.5.19(4)(h) are met.

35. 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

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

    Glen Cranwell
    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).