1507139 (Migration)

1507139 (Migration) [2016] AATA 4699 (29 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Disciples Church Incorporated
CASE NUMBER:  1507139
DIBP REFERENCE(S):  BCC2014/3520681
MEMBER:Denise Connolly
DATE:29 November 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 29 November 2016 at 11:39am

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 7 May 2015 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 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 the applicant’s nomination did not satisfy r.5.19(4)(h)(i)(A) of the Regulations because he was not satisfied the tasks to be performed in the position are those of a Minister of Religion. The delegate formed the view that the tasks of the position more closely matched the occupation Religious Assistant, which is not specified as an occupation for which a nomination could be made.
Pastor Rev Sung Yong Cho, on behalf of the applicant, appeared before the Tribunal on 16 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Kyung-Suk Kim. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review by its registered migration agent.
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 applicant provided to the Tribunal a copy of the delegate’s decision record. The applicant nominated the position Minister of Religion and claimed the nominee, Mr Kyung-suk Kim would be employed by the Disciples Church (the church) in metropolitan Sydney. It provided information about the church structure, a statement as to why the position is required, a sample weekly timetable for the position, a statement of the nominee’s qualifications, evidence of training donations, financial statements for the 2014 financial year, bank statements and a copy of the employment contract.
The delegate considered the duties of a Minister of Religion as described in ANZSCO. He noted the church structure document describes the position as the ‘Education Pastor’. He was not satisfied the position’s duties are those of a Minister of Religion. He formed the view the applicant’s congregation is provided spiritual leadership by Pastor Rev Sung Yong Cho (Rev Cho). He formed the view the position is that of a Religious Assistant which is a skill level 4 occupation according to ANZSCO. He found therefore that r.5.19(4)(h)(i)(A) was not met.
At the hearing Rev Cho, the church’s senior pastor, provided the following oral evidence. The congregation has about 150 members including children. It meets for services at a school hall on Botany Road Waterloo. The church has a written agreement with the school to use its hall and six classrooms. Services are held every Wednesday and there are three held on Sundays. There is a service held specifically for high school students. On Wednesdays there is a service held in the form of a prayer group conducted by the nominee in most cases. Rev Cho claims that the nominee now conducts the first two services on Sundays. He also conducts a Bible study group. The Tribunal asked Rev Cho what he does in the church, given he is the senior pastor. He indicated he delivers a sermon at the Sunday services and conducts a Sunday service on the first Sunday of the month. He also conducts a Bible study group for young couples each week. The Tribunal asked why Rev Cho is not conducting the other services in his church. He indicated he is extremely busy. He teaches at the Kairos Christian College (KCC). He commenced teaching in 2014. He is paid $580 per week by KCC. He teaches history and culture. Because of his commitment to teaching, the nominee is currently the main Minister of Religion for the Disciples Church. Rev Cho claims that the church previously had two Ministers of Religion. In 2015 the church also had Minister Oh but he has now left the church.
The Tribunal asked who in the last year has conducted baptisms and marriages. Rev Cho indicated that he conducted the last baptism in November 2015. Because the church meets in the school hall, marriages are conducted at a different location. He solemnised a marriage two years ago in another church. Other church couples who have married recently have returned to Korea for the service. He also conducted a funeral in July 2016 at the North Ryde Chapel. Rev Cho confirmed that the position nominated has not so far conducted funerals or marriages. However a baptism has been arranged for November 2016 and both Rev Cho and the nominee will participate in the baptism. He indicated that while the written material may refer to the nominee assisting Rev Cho, in practice they both lead within the church congregation. He claims they work together in serving the church community. He claims that he is busy at KCC and this prevents him from fulfilling the role of Minister of Religion for the church. He claims to teach at KCC for about eight hours per week however he also provides private lessons on Wednesdays and Saturdays.
The Tribunal asked Rev Cho who conducts Sunday school for the church. He indicated there are four classes: infants and primary; middle, high, and young adults; young couples; and older adults. Rev Cho conducts the young couples class. The position (the nominee) is responsible for the middle, high and young adult classes. The position is also responsible for looking after the church choir. The nominee teaches instruments for the choir on Sunday afternoons.
The Tribunal asked Rev Cho about the church structure. He indicated that the church started in 2009 and in 2011 he became the senior Minister of Religion. He built up the overall operation and managed the whole church. He claims he has reduced his involvement as he now only conducts elder meetings each week to plan activities of the church and church services only once a month. The Tribunal asked what he does in the church on the other Sundays in the month. He indicated that he acts as the principal for culture at the College and attends the Sunday services conducted by the nominee, and leads Bible study. He also meets with church elders. The Tribunal asked how long it had been since he stopped conducting most Sunday services. He indicated he stopped recently in 2016.
The Tribunal raised its concern that Rev Cho as the senior pastor in the church is not conducting the Sunday service which, in Christian communities, is such a significant service. Rev Cho acknowledged the Tribunal’s concerns but indicated he now plays other roles outside the church. He indicated he is the Director of the Korean Welfare Society, an unpaid position. He is also an Art Director for a musical and acting company, another unpaid position. While he remains a senior Minister in the church, it needs someone who has time to prepare to lead the church congregation.
The Tribunal noted that in the written application the nominated position was described as the Education Pastor, not a Minister. The applicant indicated that education is very important in the church, particularly since Minister Oh left. He indicated however that the position does more than just perform an educational role. The Tribunal asked the applicant what is required of the position. He indicated that the position undertakes about eight home visits per month. It conducts most of the church services. It leads prayer groups and prepares material for Bible study groups. It looks after the church’s social media and social networking. The position will have Mondays off. On the other days the position’s role will depend on the demands. There used to be a 5am prayer service in 2015 but this has been changed to ‘quiet time’ led by the position. The home visits are generally conducted during the week in the morning when church members gather at one home. Rev Cho does not go to those anymore except when he has time because he is now employed at KCC. He claims he has been in receipt of income from KCC since 2015. He now receives very little money from the Disciples Church, only about $5000 per year.
The Tribunal noted that the delegate formed the view that the position was that of a Religious Assistant. It asked Rev Cho if he is still considered to be the congregation’s spiritual leader. Rev Cho confirmed that, of course, his church community considers that he is currently the spiritual leader. However he is of the view that this will change over time. He acknowledged that he still plays some role in the services every Sunday.
Rev Cho agreed to provide to the Tribunal evidence that the nominee is ordained and has qualifications in theology, a Bachelor and Masters of Theology, which were awarded in Korea. He also confirmed that he would provide bank statements and ATO activity statements demonstrating evidence of the current operation of the church. When asked about any new contract of employment, he indicated the parties will sign a new contract once the Subclass 186 visa is granted. Rev Cho confirmed that he personally does not have a contract with the church. He is unaware of any adverse information about the church. Two other Ministers have now left the church, Minister Oh and Minister Lim.
When asked if there was anything else he wished to add, Rev Cho claimed he is extremely busy and he really needs a person who does the music and education for the church on his behalf. He has had the nominee working with him for 2 years, and finds that he is very sincere and talented.
The nominee also gave oral evidence to the Tribunal which was consistent with Rev Cho’s. He told the Tribunal that he conducts the Sunday service 3 times a month, and Rev Cho does it once a month. He runs the middle, high and young adult group every week. He delivers the sermon at the Wednesday prayer group and undertakes home visits, depending on when church members are in need, perhaps 1-2 times a week. He facilitates quiet time as required and trains the music members. His role has increased over the 2 years that he has been with the church.
The nominee explained that he graduated from a very famous theology course in Korea. He has studied for 11 years in total. He decided to study further and come to Australia. The Ministry exams are very difficult. He was emphatic that he is not just assisting but acting as the congregation’s Minister.
After the hearing the applicant provided the following further evidence:
a.A written submission in which asserts that while the job title is Education Pastor, the nominated occupation is Minister of Religion. Since a Christian pastor is required to teach the congregation about bible and other Christian principles, Christian education and training are essential duties. However the nominated position is intended to perform pastoral duties and extra duties such as preparing and conducting education and training. It assists the Senior Pastor in aspects of the Ministry but this does not mean it plays an assisting role only. The Senior Pastor is engaged in his teaching responsibilities with the KCC and his musical commitments outside the church. The nominated position will be required to conduct, as an ordained Minister, all religious ceremonies when the Senior Pastor is not available.
b.Organisational structure of the church showing that Rev Cho is still the Senior Pastor and the nominee is in the nominated position of Pastor.
c.A submission asserting that the nominated position’s job description is consistent with the duties of Minister of Religion as defined in ANZSCO.
d.Financial statements, BAS and bank statements for the church.
e.Documents confirming Rev Cho is employed by KCC and receives income from that employment.
f.Documents confirming the nominee’s Korean qualifications and his ordination certificate.
g.Updated employment contract between the applicant and the nominee.
h.Evidence that the nominee received income from the applicant in the 2016 financial year (income of $30,420 and rent allowance of $14,400).
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. The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal has had regard to information on the Department’s file and is satisfied that the application for approval 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 - 272211 (Education Pastor) under the nominator’s direct control. The delegate formed the view that Rev Cho is the Senior Pastor in the church and it does not need another Minister of Religion. The Tribunal shared these concerns. However the applicant has since provided further evidence to the Tribunal demonstrating that Rev Cho is working at the KCC and this has restricted his capacity to serve his congregation. The Tribunal has had regard to the financial documentation confirming Rev Cho is in receipt of income from KCC. The Tribunal also accepts he is involved in other unpaid community activities. The nominee’s evidence about the duties he undertakes in the position was consistent with that of Rev Cho. Having regard to the ANZSCO definition the Tribunal is satisfied these are the duties of a Minister of Religion.
Overall the Tribunal is satisfied Rev Cho still provides significant spiritual leadership in the church community. However it is satisfied the nominee, who is already employed in the nominated position, provides spiritual leadership, prepares and conducts 3 Sunday services per month, leads prayer groups, visits members of the church community and leads the church choir and band. The Tribunal is satisfied the position provides spiritual leadership and performs the above functions at the level of a Minister of Religion, and not just an assistant.
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)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
According to ABN records, the applicant is registered as a charity. The applicant’s certificate of incorporation, financial documents, including recent view activity statements, financial reports, bank statements, invoices and tax records for the nominee indicate that the nominator is actively and lawfully operating a business 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.
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)
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 to the Tribunal a copy of the most recent employment contract, dated 28 September 2016, which sets out the terms and conditions of employment and indicates 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.
The employment contract includes a base salary of $30,420 and rent allowance of $14,400. Evidence has been provided that the applicant has regular cash income from its congregation (the bank statements) and the nominee has been paid this salary in the last financial year indicating the applicant has the capacity to provide this base salary.
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.
The contract indicates the nominee will be paid a base salary is $30,420, and rent allowance of $14,400, plus superannuation. The applicant told the Tribunal that Rev Cho no longer receives much income from the church as his main employment and source of income is his teaching position at KCC. While Rev Cho continues to perform one Sunday service per month, it is claimed there is no Australian employee performing equivalent work in the same work place at the same location, on a full-time basis.
The Tribunal has had regard to information from Payscale about a senior pastor’s salary, which indicates that the median salary is $50,793 and the salary range is $22,114 to $79,175. In these circumstances, the Tribunal is of the view the proposed salary of $30,420 with a rent allowance of $14,400 plus superannuation is reasonable. The Tribunal has taken into account that the nominee is working alongside Rev Cho and this appears to be his first Ministerial position. The contract also provides the position with annual leave of 4 weeks and sick leave.
On the evidence, the Tribunal is satisfied 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)
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 rr.1.13A and 1.13B.
The Tribunal is not aware of any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
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 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 information on the Department’s file, and the oral evidence provided at the hearing, confirm that the position is located in Sydney, not regional Australia. As the position is not located in regional Australia, the applicant does not meet one of the requirements of r.5.19(4)(h)(ii). The nomination must therefore meet the requirements of r.5.19(4)(h)(i) to be approved.
The Tribunal has had regard to the written submissions provided to the Department and the Tribunal, and the oral evidence at the hearing. It takes into account the nominee’s Bachelor and Master qualifications awarded in Korea, and his Pastor ordination dated March 2012. On the basis of that evidence, the Tribunal is satisfied the position prepares and delivers Sunday services, provides spiritual guidance to the church community, conducts home visits and leads prayer groups, conducts classes of religious instruction, will perform certain Christian celebrations such as baptisms, and organises and teaches choir.
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 Tribunal has considered all the evidence and is satisfied that the tasks to be carried out in the position are at a higher level than that of a Religious Assistant. It is satisfied the tasks correspond to the ANZSCO description of the occupation of Minister of Religion, which is an approved occupation and that the tasks to be performed in the position correspond to those at ANZSCO skill level 1. The applicant therefore meets r.5.19(4)(h)(i)(A).
The Tribunal has also considered whether the applicant meets the training requirements set out in IMMI 13/030. As the applicant has operated for at least 12 months, it must meet the training requirements for the training of Australian citizens and permanent residents that are specified by the Minister in the relevant instrument (IMMI 13/030) 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.
Based on the financial documents available to the Tribunal for the most recent full financial year, the Tribunal finds that the payroll expenditure of the applicant is $54535. The Tribunal finds that 2% of that amount is $1091.
The applicant provided receipts demonstrating expenditure on training that can count towards benchmarks A and B. The documents include two receipts issued to applicant by TAFE Queensland, to an approved fund under Visa Training Benchmark A towards Education Services, dated 27 September 2016, for a contribution of $1010, and 28 November 2016 for $200, totalling $1210, that is, at least 2% of the payroll expenditure. TAFE’s correspondence indicates the contributions may be used to improve access and support for education and training, engagement with the TAFE community and scholarships for those who demonstrate excellence or hardship. The Tribunal is of the view that, as the applicant is a registered charity, the provision of education, training and financial support to those in need is consistent with the way in which TAFE intends to use the contribution and is satisfied this, in effect, is the same industry. It is satisfied therefore on the basis of the evidence that the applicant has demonstrated recent expenditure in payments allocated to an industry training fund that operates in the same industry and meets Training Benchmark A. The Tribunal finds that the applicant meets the requirements of r.5.19(4)(h)(i)(B)(I).
Given the above, the Tribunal finds that the applicant meets the requirements of r.5.19(4)(h)(i).
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.
Denise Connolly
A/g Senior 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).

[2016] AATA 4699

29 November 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice