1517656 (Migration)

1517656 (Migration) [2016] AATA 3841 (28 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sri Lanka Buddhist Monastery (Brisbane) Incorporated
CASE NUMBER:  1517656
DIBP REFERENCE(S):  BCC2015/1379656
MEMBER:Bruce Henry
DATE:28 April 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 28 April 2016 at 4:39pm

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 1 December 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 13 May 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).
In this case, the applicant has applied for approval of a nomination for the occupation Minister of Religion (ANZSCO 272211), seeking to satisfy the criteria in Direct Entry Nomination stream. Information with the application stated that the nominee had been a Resident Monk at the applicant monastery since 23 August 2011 as the holder of a religious worker visa, subclass
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(i) of the Regulations because the majority of the tasks of the nominated position are not those of a Minister of Religion, but those of a Religious Assistant (ANZSCO 451816), which is not an occupation listed on the Consolidated Sponsored Occupation List (CSOL).
Mr Donald Sarath Gunatillake and Mr Peter Abydeera appeared before the Tribunal on behalf of the management committee of the applicant on 27 April 2016 to give evidence and present arguments.
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.
Background
Information on the departmental file is that the nominating business is registered and has an Australian Business Number. The application states that the business was established on 19 December 1990 and employs one Australian employee and three foreign employees. The head office of the business and the nominated position are located in Brisbane.
Documents lodged in support of the nomination included financial accounts for the business as at 31 December 2014, a business organisational chart, a copy of the business’ tax exemption as a charity and registration as a deductible gift recipient with the Australian Taxation Office, letters from the Secretary, the President and Chief Incumbent. The applicant also provided its most recent annual report detailing the work of the monastery. A copy of an employment contract for the nominee was also provided to the Department, and shows that the nominee was not to be remunerated but rather provided with a ‘benefit package’ as a Resident Monk at the monastery.
The nominated occupation is Minister of Religion (ANZSCO 272211), which is described as follows in the ANZSCO dictionary:
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).
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 necessaty
·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
The applicant provided a copy of the delegate’s decision refusing the nomination to the Tribunal. The delegate said:
In assessing the tasks of the nominated position and the associated ANZSCO skill level, I have taken into account all information presented and refer to the following policy guidance:
23.2 Eligible positions
Under policy, the occupation of Minister of Religion (ANZSCO 272211) will encompass a range of positions whose tasks primarily involve religious duties. Positions regarded as having primarily religious duties are those where the duties are clearly to service the spiritual needs of the organisation's congregation. These positions typically have a range of titles such as deacon, imam, minister of religion, monk, nun, brother/sister, pastor, priest, rabbi, and Salvation Army captain (religious duties). Duties common to most of these positions include leading congregations in worship, administering rites and the sacraments and ministering to spiritual needs.
On the application form the nominating employer states that the position Is a 'Deputy Chief Incumbent'. However an employment contract provided indicates the nominee's job title is 'Resident Monk' with the following duties as set out below:
·Organise various routine religious programs and cultural events held at the Monastery in collaboration with the congregation
·Spiritual guidance for adults and the youth
·Family, marriage and individual counselling
·Conduct special ceremonies, rituals and rites
·Delivery of discourses expounded by Lord Buddha followed by discussions
Provide guidance to hold important annual events in the Buddhist Calendar
·Engage In supervising and providing direction to the lay organisers conducting Buddhism classes for the children
·Organise and conduct jointly with other monks, special monthly programs to observe the eight precepts
·Take part in regular meditation, pirith chanting and Dhamma Discussion Programs held on Saturdays, Sundays, Wednesdays and Fridays.
·Blessing of homes and businesses
·Conduct chanting specific to pregnancy, birth and weddings
·Visitation to hospitals and blessing of the sick, and attending funeral ceremonies Attending alms giving, multi-faith programs and cultural forums
·Take on other responsibilities entrusted upon by the Chief Incumbent from time to time
The nominating employer also provided the specific and major duties and tasks of the position as follows:
·Act as a deputy to the chief incumbent and responsible for routine operation and administration of the temple
·Liaison with the wider community promoting multiculturalism
·Overall supervision and coordination of religious, cultural, educational and social programs of the monastery in consultation with the Management Committee
·Represent SLBM in public forums as well as business conducted by state and local government and other institutions Involving multi-faith and cultural affairs
·Responsible for dissemination of information to the general public via electronic media Organisation of major Buddhist Festivals in collaboration with the congregation
·Assume responsibilities and discharge duties as proposed by the Chief Incumbent in his absence.
A letter from president and Chief Incumbent of the SLBM (B) Inc (Rev Wattegama Dhammavasa N Thero) stated that the nominee has been serving in the Sri Lanka Buddist Monk from 23 August 2011 to date as a 'Resident Monk'. The organisational chart indicates that the nominee and the other resident monks report to a Senior Resident Monk who reports to the Chief Incumbent.
Based on the description of the positions' duties, it does not appear that the nominated position has a senior role in the organisation. It is apparent that the position is involved in organising various social and religious events but it is clear that nominated position does not play a senior role in the organisation. It appears that the nominated position may be that of a Religious Assistant (ANZSCO 451816), rather than a Minister of Religion (ANZSCO: 272211).
ANZSCO describes a Religious Assistant as one who 'supports Ministers of Religion or a religious community in performing a variety of religious functions associated with the practice of religion, including worship, spiritual guidance, pastoral care and teaching’. This occupation is classified as Skill Level 4 by ANZSCO.
The occupation of Minister or Religion (ANZSCO 272211) is described in ANZSCO as having religious duties such as preparing and conducting services of public worship, performing marriages, funerals and special memorial services according to tradition and relevant law, studying and interpreting sacred scriptures, often with the use of university-level training and knowledge in order to prepare and deliver sermons, homilies and special talks.
The roles being performed by the Temple Abbot or Assistant Temple Abbot would generally be accepted as meeting the higher spiritual need requirements of the faith community. The tasks performed by these people are considered to be at a higher level and require a higher degree of experience and qualification than those performed in the occupation of a Religious Assistant (ANZSCO 451816).
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, 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.
On the basis of the application and accompanying material the Tribunal is satisfied that the application meets these requirements, and 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. Again, on the basis of the application and accompanying material the Tribunal is satisfied that the application meets these requirements, and r.5.19(4)(b) is satisfied.
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. This provision has no application to this case.
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. As noted above, a copy of the employment contract for the nominated position was provided to the Department, and the Tribunal notes that it states that the position is ‘permanent and ongoing’.
The Tribunal notes that there is no requirement for the contract to specifically state that the employment will be available for a period of 2 years. Departmental policy, to which the Tribunal may have regard in appropriate cases, states that a contract that provides that the position is permanent and ongoing is sufficient to satisfy the relevant regulatory requirements. The Tribunal is satisfied that it is appropriate to apply the policy in this case, and finds that 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 evidence before the Tribunal, including the annual reports of the applicant and the letter from the Chief Incumbent that appear on the departmental file, is that the terms and condition applicable to the nominated position are as set out in the employment contract:
In general, all working conditions conform to the long held traditions of Theravada Buddhism. In keeping with the Theravada monastic values, the monks do not receive any stipend or remuneration or any other benefits for offering spiritual guidance to the community. Accordingly, you will not be paid any remuneration or stipend, but the employer (SLBM) undertakes to cover all of your expenses including full medical and health care. The SLBM will provide you with food, clothing, accommodation, medical insurance, and transport as well as other personal needs and also take care of your travel and other sundry expenses.
(A detailed description of the benefits and entitlements is given in Annexure A along with an estimated valuation of the facilities provided)
The Annexure to the contract provides a full breakdown of the benefits and entitlements of the position with a costing for each.
At the hearing Mr Gunatillake and Mr Abeydeera told the Tribunal that in addition to the Chief Incumbent there are currently 3 Resident Monks at the monastery. The Chief Incumbent is an Australian citizen, as is one of the Resident Monks. Another of the Resident Monks is an Australian permanent resident. All of the monks are employed on identical terms and conditions as those provided to the nominee under the employment contract set out above.
Based on the evidence before it, the Tribunal is satisfied that these terms and conditions are no less favourable than those provided to Australian citizen and permanent resident monks performing equivalent work for the applicant 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.
There being no information before the Tribunal to the contrary, I am satisfied that 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 being no information before the Tribunal to the contrary, I am satisfied that 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. As far as is relevant to the application, they require that 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 15/092), and certain specified training benchmarks will be met.
Based on the documentary evidence produced by the applicant and the evidence of Mr Gunatillake and Mr Abeydeera at the hearing, the Tribunal accepts that many of the duties of the nominee are broadly consistent with the tasks set out in ANZSCO for a Minister of Religion. The nominated position involves preparing and conducting services and sermons and religious instruction classes, counselling, participating in social welfare activities of community members and performing marriages and funerals in accordance with religious teachings. On this basis, the Tribunal accepts that the tasks to be performed in the position will be performed in Australia and correspond to the tasks set out in ANZSCO for a Minister of Religion, and that the position is not that of a Religious Assistant.
Accordingly the requirements of r.5.19(4)(h)(i)(A) are met.
The other requirement in r.5.19(4)(h)(i) is that the applicant meets the training requirements specified in the relevant instrument, as the business has operated for over 12 months.
The training benchmarks are found in Schedule A of IMMI 13/130[1]:
[1] F2013L01236, Specification of Training Benchmarks and Training Requirements (Paragraphs 2.59(d), 2.68(e), subregulations 2.87B(2) and 2.87B(3) and sub-sub-subparagraph 5.19(4)(h)(i)(B)(I)), 28 June 2013, commenced 1 July 2013
Training Benchmarks
The business is not required to demonstrate that they are an industry leader in training.
The business 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 is related to the purpose of the business.
The training benchmarks for an established business are:
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.
Expenditure that can count towards this benchmark includes:
·   paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy
·   funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy
·   employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
·   employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job
·   evidence of payment of external providers to deliver training for Australian employees
·   on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:
·the learning outcomes of the employee at each stage;
·how the progress of the employee will be monitored and assessed;
·how the program will provide additional and enhanced skills;
·the use of qualified trainers to develop the program and set assessments; and
·the number of people participating and their skill/occupation
Expenditure that cannot count towards this benchmark includes training that is:
·delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’
·confined to only one or a few aspects of the businesses broader operations, unless the training is in the primary business activity
·only undertaken by persons who are not Australian citizens or permanent residents
·only undertaken by persons who are principals in the business or their family members
·only relating to a very low skill level having regard to the characteristic and size of the business.

The Tribunal notes that the evidence before it as set out above is that the monks employed by the applicant are unpaid. The audited accounts of the organisation that form part of the annual report show that its income derives from donations and subscriptions as well as from canteens operated by volunteers. The Tribunal accepts based on this evidence that the organisation has no payroll expenses. Accordingly, it appears to the Tribunal that no training expenditure is required in order for the applicant to meet the requirements of either training benchmark A or B.
The Tribunal notes that Departmental policy states that a nominee is exempt from the training benchmarks requirements if the nominated occupation is that of Minister of Religion.[2] The Tribunal accepts that this policy goes beyond the terms of r.5.19(4)(h)(i)(B) and must give way to the specific wording of the regulations even in circumstances where the application of the policy would benefit an applicant: see Riley FM’s comments in Alimi v Minister for Immigration & Anor [2007] FMCA 1520.
[2] PAM DIV 5.3 – Reg 5.19 – Approval of nominated positions (employer nomination) 24.7
In the circumstances of this case, however, it is unnecessary for the Tribunal to find that the applicant is exempt from the training benchmarks because it has no payroll expense.
Accordingly, the Tribunal is satisfied that 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.
Bruce Henry
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 3841

28 April 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction