1418975 (Migration)

[2016] AATA 3032

1418975 (Migration) [2016] AATA 3032 (7 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  'Harvest' - Slavic Christian Church of Australia

CASE NUMBER:  1418975

DIBP REFERENCE(S):  BCC2014/1302134

MEMBER:Brook Hely

DATE:7 January 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 07 January 2016 at 10:51am

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 1 November 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 26 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) of the Regulations because the delegate was not satisfied that there was a need for the nominator to employ a paid employee to work in the position.

5. The applicant appeared before the Tribunal on 4 December 2015 to give evidence and present arguments, with Mr Dimitri Matveev giving evidence on the applicant’s behalf. The Tribunal also received oral evidence from Mr Bogdan Jez, another member of the applicant’s church.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.

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

8. 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. Relevant to this criterion, the Tribunal must be satisfied that the applicant has not only an intention but also a financial capacity to provide full time employment in the nominated position for at least two years.

9. By way of background, Mr Matveev explained at the hearing that the applicant is an incorporated association set up as church by members of a small congregation of Slavic Christians. He explained that members of this church have been gathering over the past 10 – 15 years in the homes of its members and conducting informal church services. Over the past decade, the nominee has travelled to Australia on a visitor visa several times and assisted the congregation to expand and formalise its activities. Approximately 2 years ago, he assisted them to establish the applicant under its current name and registration. Mr Matveev noted that the church currently has around 50 members and it was their hope and intention to employ the nominee as a pastor on a full-time basis in order to expand the congregation of the church. Mr Matveev noted that the Church is currently run on a volunteer basis, with several members of the Church taking turns to fill the role of Pastor. However, these members all work full time in other jobs and they lack the necessary training and experience to conduct various religious activities, such as weddings, baptisms and the like. They were therefore seeking to employ the nominee to run the church on a full-time basis. Mr Matveev also noted that the nominee brought with him a wealth of experience necessary to lead and expand the church.

10. As part of its processing the application, on 1 October 2014 the Department sent the applicant a request for more information including, amongst other things, financial documentation relevant to its ongoing operation, such as financial reports, tax returns or Business Activity Statements. Similarly, on 30 October 2015, the Tribunal wrote to the applicant requesting information to demonstrate that it met each of the requirements of r.5.19(4). In its letter, the Tribunal listed a number of different types of documents that may assist in demonstrating that it met these requirements, including financial reports, Business Activity Statements and/or payslips for the nominee.

11. However, very little evidence has been provided to demonstrate any financial capacity on the part of the applicant. The Tribunal acknowledges the statutory declaration of Mr Matveev, declared on 11 November 2015, in which he noted that the applicant is not a traditional business organisation, but rather is a spiritual organisation that aims to provide religious services. He noted that the applicant does not file tax returns or make financial requests of the government. Rather, the business of the church is conducted through regular collections from its members to cover the costs associated with running the church, including rent, pay for the nominee and charitable activities. Mr Matveev also provided a bank statement in respect of an account held by the applicant, which recorded a balance of $65,220 as at 11 November 2015.

12. In his oral evidence at the hearing, Mr Matveev gave evidence that the applicant had previously covered the costs associated with visits by the nominee to Australia. When asked about details of these costs, he said that they paid for his transport, lodging, meals and the like. However, when asked about evidence of this, he conceded that no receipts had ever been retained. When asked about evidence to demonstrate the financial position of the applicant generally, he again conceded that it has never kept any formal records as it was not aware that such evidence would be necessary. The Tribunal put to Mr Matveev its concern that, with respect to the bank statement provided, there is no history of transactions and the account was only opened on 6 November 2015. The Tribunal noted its difficulty in accepting that this provided a reliable basis for assessing the applicant’s financial position. Mr Matveev conceded that it did not have any real records with respect to the financial position of the applicant. He noted that the applicant is only a small church that has been run very informally; it was not aware of the need to keep such records in order to support an application like this one. However, he maintained that the members of the church were very committed to sponsoring the nominee as they were in great need for his wisdom, experience and guidance. He also noted that members of the Church were from a variety of professional backgrounds and had the capacity to support the Church in its aim to employ the nominee. Mr Jez also gave similar evidence regarding the need of the applicant to employ the nominee.

13. The Tribunal can sympathise with the difficulties facing the applicant and its members in forging a new church and expanding its congregation. The Tribunal also appreciates that the applicant’s church is not run like a business and that, until now, it has not felt any need to retain or maintain financial records. Nevertheless, the Tribunal does not have before it satisfactory evidence to demonstrate that the applicant has the capacity to provide two years of full-time employment to the nominee. There is no evidence to demonstrate any historical pattern of financial activities on the part of the applicant or to demonstrate how, where or when it generates funds, the amount of any such funds or how such funds are applied. Nor has any evidence been provided to show what financial support has previously been provided to the nominee on past visits or the source of such funds. Whilst a bank balance has been provided which ostensibly records the applicant as holding $65,220 in a bank account, this account was only recently opened and there is no history of transactions. As such, there is a lack of evidence to demonstrate that these funds will remain available to the applicant going forward or to demonstrate that further funds will become available to the applicant to meet the nominee’s proposed salary ($54,000) over a period of at least two years.

14. On the very limited evidence before it, the Tribunal is not satisfied that the nominee will be employed on a full-time basis in the position for at least two years. Accordingly, the requirement in r.5.19(4)(d)(i) is not met and therefore r.5.19(4)(d) is not met in its entirely.

15. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

16. The Tribunal affirms the decision under review to refuse the nomination.

    Brook Hely
    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).