1517903 (Migration)

[2016] AATA 4668

1517903 (Migration) [2016] AATA 4668 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Cambodian Welfare and Cultural Centre of Western Australia Incorporated

CASE NUMBER:  1517903

DIBP REFERENCE(S):  BCC2015/1307273

MEMBER:Stavros Georgiadis

DATE:23 November 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 23 November 2016 at 5:41pm

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 8 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).

2. The applicant applied for approval on 6 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).

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

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4) of the Regulations as the delegate was not satisfied that the occupation (of Religious Assistant deemed as the nominated occupation) is listed in the instrument relating to the Consolidated Sponsored Occupation List (CSOL) for the purposes of r.5.19(4)(h)(i)(A). The delegate also considered that there was no evidence that a Regional Certifying Body (RCB) located in the same State or Territory as the location of the position (WA) has advised the Minister about the matters mentioned in r.5.19(4)(e) and sub-subparagraphs (B) and (C) to satisfy the requirements of r.5.19(4)(h)(ii)(F).

5. Mr Pheap Him, President of the Cambodian Welfare and Cultural Centre of Western Australia Incorporated, appeared on behalf of the applicant before the Tribunal on 23 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Venerable Monk Sam Oeun being the person named in the nomination for a religious worker as Minister of Religion.  The Tribunal was assisted by an interpreter of the Khmer and English languages.

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.

   Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)

8. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment at the end of 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 (relevantly legislative instrument IMMI 15/091), 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 (RCB) has advised the Minister about certain matters relating to the position.

9. A nomination can only be approved if the employer satisfies the limb of r.5.19(4)(h) for which they have paid the corresponding fee under r.5.37.

10. The key difference between the two limbs is that while the first does not limit the location of the position other than that it must be in Australia, the second [r.5.19(4)(h)(ii)] requires that the position is located in regional Australia. In this case, the application is for Direct Entry Nomination in respect of the position of Minister of Religion (ANZSCO 272211) to be located in the suburb of Bennett Springs, 6063 in metropolitan Perth, WA. The Tribunal accepts that the application is one under the Direct Entry Nomination stream for a position in regional Australia. For the purposes of r.5.19(4)(h)(ii), the whole of the State of Western Australia is deemed by the relevant instrument as regional Australia.

11. The applicant’s oral evidence is that the nominee is Head Monk and oversees two other monks to provide religious and other services to the local Cambodian community.  As a religious worker, he is not in a paid position but instead receives benefits such as accommodation, food and clothing in lieu of wages. There is therefore, no fixed salary as his benefits vary from time to time depending on the services required. The applicant confirmed in oral evidence at the hearing that there is no payroll for the organisation as other monks are also on similar arrangements. The nominee has been given time off and annual leave, such as 4 weeks away to return to Cambodia to attend to his ill mother, as part of his engagement with the applicant.  He confirmed this in his oral evidence at the hearing.

12. The Tribunal accepts that the nominating employer is a religious institution or other not-for-profit organisation such as the charitable organisation. The Tribunal accepts that in these cases, the nominator has not proposed to pay the nominee any monetary remuneration as part of his employment and therefore, does not have a payroll system. The Tribunal accepts that in lieu of monetary payment, the nominee is provided with housing, food and other basic living needs. The applicant nominator has operated for at least 12 months.  Given the  finding of no payroll in these circumstances, the Tribunal notes that the nominator is not able to establish it meets the requirements for the training of Australian citizens and Australian permanent residents (which refers to payroll sums and percentages) specified by the Minister in the relevant instrument for the first limb of r. 5.19(4)(h)(i)[1].

    [1] r.5.19(4)(h)(i)(B)(I).

13. The Tribunal accepts that the position relates to an employer nomination located in regional Australia and has therefore proceeded to consider, as did the delegate, the alternative limb under r. 5.19(4)(h)(ii).  As aforementioned, this requires that the nominator’s business is located in regional Australia; that 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; that 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 (RCB) has advised the Minister about certain matters relating to the position.

14. The Tribunal accepts that the regional Australia requirement in r.5.19(4)(h)(ii)(A) is met given the location of the nominated position is in Bennett Springs, 6063 in metropolitan Perth, WA.

15. The Direct Entry Nomination stream application must meet requirements relating to the ‘need for a paid employee’. Where as in this case, the employee is not paid a wage or salary, consideration will need to be given to whether these requirements can be met. On one view, attributing the ordinary meaning to the word ‘paid’ would require the giving of a monetary payment. While the terms of an employment contract can provide for an exchange of labour for non-monetary benefits, on this view an employee who does not receive any wage or salary cannot be said to be a ‘paid employee’. However, Departmental guidelines (PAM3) indicate that this requirement, in the case of religious organisations only, can be satisfied by either the offer of a subsistence wage that is at least equivalent to unemployment benefits, as well as  providing board/lodging and any other non-monetary benefits as part of a package that can be equated in value to the minimum salary; or providing all the employee’s living needs directly from the religious organisation’s own funds, in a package that can be equated to the minimum salary.[2] Although this policy goes beyond the terms of the Regulations suggesting no clear legal basis for taking such an approach, the Tribunal does not draw any adverse inference from this arrangement in this case.

    RCB Certification

    [2] PAM3: Migration Regulations – Division 5.3 – General > Reg 5.19 – Approval of nominated positions (employer nomination) > Employer Nomination Scheme (ENS) at [24] (15/05/12 – 30/06/12 compilation).

16. In relation to the Direct Entry stream, it is a requirement for ‘regional’ applicants that a specified Regional Certifying Body has provided ‘advice’ to the Minister about whether certain requirements are met. In Bharaj Construction Pty Ltd v MIBP[3], the Court commented in obiter that the use of the word ‘advice’ undoubtedly puts beyond doubt the construction of r.5.19(4), i.e. the advice is to be considered by the Minister (or Tribunal on review) in determining whether those requirements are satisfied but it is not determinative.[4]  The applicant’s oral evidence is that at no stage has a Regional Certifying Body provided such advice or any certificate.  The applicant sought further time to obtain the certification.  The Tribunal noted at the hearing that this formed part of the delegate’s reasons for refusing the nomination.  The Tribunal accepts that a copy of the delegate’s decision was attached to the application for review and that it squarely raises (on page 7) the issue of the absence of the RCB’s advice.  Given the delegate’s decision was made in December 2015 the Tribunal considers that ample time of almost a year has passed to obtain RCB certification and therefore does not allow further time for this purpose.

    [3] [2016] FCCA 902 (Judge Barnes, 28 April 2016)

    [4] Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016) at [81].

17. The Tribunal finds that at the time of decision there is no evidence that a Regional Certifying Body located in the same State or Territory as the position has advised about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) - to satisfy the requirements of r.5.19(4)(h)(ii)(F).

18. Accordingly the requirements of r.5.19(4)(h) are not met.

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.

    DECISION

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

    Stavros Georgiadis
    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).