1509588 (Migration)

[2016] AATA 3156

1509588 (Migration) [2016] AATA 3156 (29 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Khmer Buddhist Association of SA Inc

CASE NUMBER:  1509588

DIBP REFERENCE(S):  BCC2015/500458

MEMBER:Carolyn Wilson

DATE:29 January 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 29 January 2016 at 2:31pm

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 3 July 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).

2. The applicant applied for approval on 14 February 2015. 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)(e) of the Regulations because the terms and conditions of employment were less favourable than the minimum salary in Australia.

5. Mr Anh Oan, President of the applicant association, appeared before the Tribunal on 29 January 2016 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)

9. 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, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

10. The nominating employer is the Khmer Buddhist Association of South Australia.  The nominated position is that of a Buddhist Monk, a religious worker.  There are currently 5 Buddhist Monks ‘employed’ by the association, including the nominee in this nomination.

11. The applicant concedes the position does not attract any pay, but is a voluntary position. This is confirmed in the sample contract of employment provided to the Department which described the position as a ‘volunteer’. In lieu of salary the Association provides for the shelter, food, and other needs of the nominee. 

12. The Tribunal raised its concerns with the applicant, both at the hearing and in the hearing invitation, that the nominated position did not appear to be a position for a paid employee, as required by r.5.19(4)(a). At hearing the applicant had no oral submissions to make on this issue.

13. In pre-hearing submissions, the representative submitted that the term ‘paid employee’ did not mean the employee had to be engaged under a conventional salary arrangement, and that the requirement could be satisfied by a livings needs package being provided. The representative submitted that the removal of the requirement to be paid a salary, in changes to r.5.19(4) on 1 July 2012, reflected an intention of the Department that Ministers of Religion can be paid in kind in lieu of wages or salary and still meet the requirements for a nomination to be approved. The representative also referred to a decision by a differently constituted Tribunal, which was dealing with a pre-1 July 2012 application, but speculated on the effect of the 1 July 2012 amendments. The Tribunal has read that decision but is not bound by the reasoning in that decision.

14. The Tribunal has considered whether a religious worker who works not for pay but for reason of their religious beliefs and in exchange for accommodation, food, and other personal needs is a ‘paid employee’.  

15. The term ‘employee’ is not defined in the Regulations, and neither is ‘paid employee’.  As the terms are not defined, the Tribunal has considered the ordinary meaning of these words.   The Oxford Dictionary defines ‘employee’ as ‘a person employed for wages or salary’.[1]  ‘Paid’ is defined in the Oxford Dictionary as the past and past participle of ‘pay’, which is defined as to ‘give (someone) money that is due for work done, goods received or debt incurred’.[2] 

    [1] Accessed 29/1/16paid at Accessed 29/1/16 at >

    Given the definition of ‘employee’ includes payment of wages or salary, the addition of the word ‘paid’ would seem redundant. The Tribunal infers it has been included for emphasis and to remove any doubt that nominations under r.5.19(4) are only for positions that attract remuneration by way of money.

16. As well as considering the ordinary dictionary meaning of ‘employee’ and ‘paid’, the Tribunal has considered r.5.19(4) as a whole. In order for a nomination to be approved, a sponsor must demonstrate the following: they must identify a need for a paid employee, r.5.19(4)(a) and r.5.19(4)(h)(ii)(B); must provide full-time employment for at least 2 years, r.5.19(4)(d); and the nominator must have a satisfactory record of compliance with the laws of the Commonwealth relating to workplace relations, r.5.19(4)(g). The Tribunal has formed the view that when r.5.19(4) is considered as a whole it is not evident, as the applicant submits, that the Department has deliberately removed all references to salary so that nominees such as Religious Workers, who work voluntarily in exchange for their living needs being met, can meet the criteria. The Tribunal considers the requirements for the nominator lawfully operating a business, with a need for a paid employee, offering full-time employment, and complying with workplace relations laws, indicates an intention by the Department that nominations under r.5.19(4) are for paid workers and not volunteers, The Tribunal finds the use of the term ‘paid employee’ indicates an intention that in order to meet r.5.19(4) the nominee must be paid.

17. The Tribunal has considered the ‘salary’ described in the employment contract dated 4/10/12 for another monk at the Association, which states the position does not have any direct remuneration, but that $5,000 is put aside ‘on a charity basis to meet his daily needs’.  The Tribunal does not accept this arrangement equates to being paid a wage or salary for work done.  The Tribunal does not accept the applicant will be employed for wages or a salary and does not accept the position is for an ‘employee’ or a ‘paid employee’.

18. The Tribunal finds the applicant has identified a need for a voluntary Religious Worker. The Tribunal finds the applicant has not identified a need to employ a paid employee to work in the position under their direct control. The applicant has not met r.5.19(4)(a).

19. 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.

20. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

21. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can make a request directly to the Minister.

    DECISION

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

    Carolyn Wilson
    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).