Muhammadi Welfare Assoc of Australia INC (Migration)

Muhammadi Welfare Assoc of Australia INC (Migration) [2020] AATA 527 (25 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Muhammadi Welfare Association Inc
CASE NUMBER:  1710966
DIBP REFERENCE(S):  BCC2016/3002746, BCC2017/123789
MEMBER:Katie Malyon
DATE:25 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the application and substitutes a decision that the applicant is approved as a Long Stay Activity Sponsor.
Statement made on 25 February 2020 at 4:18 pm

CATCHWORDS
MIGRATION – work sponsor approval – Long Stay Activity Sponsor – religious institution lawfully operating in Australia – council approval of place of worship or assembly – yet to obtain an Occupation Certificate – religious events conducted at public facilities – use of school facilities – registered charitable organisation – up-to-date reporting – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140E
Migration Regulations 1994 (Cth), rr 1.03, 2.60A, 2.60L, 2.60S, 2.61

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 and Border Protection on 5 May 2017 not to approve the applicant, Muhammadi Welfare Association Inc ABN 58 147 351 694 (the Muhammadi Association or the Association) as a sponsor under s.140E of the Migration Act 1958 (the Act).
The Association applied for approval as a Long Stay Activity Sponsor on 2 September 2016. The delegate decided not to approve the application on the basis that the Association did not satisfy r.2.60L of the Migration Regulations 1994 (the Regulations) no evidence was provided that its Community Centre at 419 Blaxcell Street, South Granville was approved as a place of worship or assembly by the Local Council. A copy of the delegate’s decision was provided to the Tribunal together with the review application.
Background
As confirmed in documentation lodged with the Department and as noted on the website of the Australian Government’s Charity and Not-for-profit Commission (the Commission), the purpose of the Muhammadi Association is to promote the benefit of residents of greater Sydney, in particular, those who are Shi’te Muslims in a manner consistent with the teachings and traditions of the Shi’te faith, by:
a)providing facilities in the interests of social welfare for the recreation and other leisure-time occupation of such inhabitants with the object of improving their condition of life;
b)advancing education concerning good citizenship in a multi-racial / multi-faith society and promoting good relations between such persons;
c)providing facilities for religious functions and the performing of religious rites and ceremonies in accordance with the Shi’te faith including marriages and funerals;
d)advancing education concerning the Muslim religion and culture; and,
e)establishing or securing the establishment of a centre and managing or co-operating with any local statutory authority or organisation in the maintenance of such a centre for activities promoted by the Association in furtherance of the above objects.[1]
[1] >
Of relevance to this decision, the Independent Auditor’s Report lodged with the Commission for the year ended 30 June 2018 confirms that the property at 419 Blaxcell Street, Granville was sold during that financial year and, relevantly, the proceeds of the sale have been predominantly applied to the construction of a property at 81 – 89 Clifton Avenue, Kemps Creek (the Kemps Creek Property).[2]
[2] >
Prior to the first hearing on 8 October 2019, the Muhammadi Association provided the following documentation:
1)Penrith City Council Notice of Determination DA 13/1271 decision dated 24 November 2014 in respect of the Kemps Creek Property issued to the Muhammadi Association for approval as a Meeting Hall, Shed, Carpark, Associated Landscaping, Wastewater Management System for use, relevantly, as a Place of Public Worship; and,
2)a report from Quantity Surveyor Michael M. Dakhoul dated 13 September 2019 in relation to an inspection of the Kemps Creek Property undertaken 30 March 2019.
Hearing – 8 October 2019
The Tribunal’s review of the delegate’s refusal of the Muhammadi Association’s sponsorship application was conducted on 8 October 2019 as a combined hearing together with its review of the delegate’s refusal of the Subclass 401 visa application made by persons proposed to be sponsored by the Association, Dr Syed Naqvi and family (Matter No. 1710977).
Mr Syed Tanvir Hassan (the Secretary of the Muhammadi Association) and Mr Mir Ammad Hussain (an Executive Committee Member) appeared before the Tribunal to give evidence and present arguments on behalf of the Association. The Tribunal also received independent oral evidence from the nominee Dr Naqvi. The registered migration agent representing both the Association and the applicants for their Subclass 401 visas sponsored by the Association, Mr Mohammad Ahmed of Aus-Can Immigration Services, also attended the hearing.
At the commencement of the hearing, the representative provided a number of documents including, relevantly:
1)letter from the Muhammadi Association addressed to Dr Naqvi dated 8 August 2019 confirming extension of his contract as Resident Director – Religious Affairs for a further period of 12 months; and,
2)an aerial photograph of the Kemps Creek Property showing completion of a large double story building and concrete driveway but with a range of construction equipment and vehicles in the grounds.
At the outset, the Tribunal acknowledged that, from information publicly available on the Commission’s website, it was aware the Association had sold its property at 419 Blaxcell Street, South Granville and that it was constructing a new facility for religious functions on a large 22 acre block of land at Kemps Creek.
Mr Hassan told the Tribunal that completion of building works at the Kemps Creek Property is not expected to be finalised until March or April 2020. He added that all of the building construction work has been done: however, the Association has not been able to formally occupy the premises pending finalisation of remaining works which involve bitumen work to be completed in the car park (concreting has already been done) and landscaping. An Occupation Certificate cannot be issued until such time as all of this work has been done. Pending completion of the project in March / April 2020, the Muhammadi Association has been using facilities at Granville Public School for Urdu language classes as well as Auburn Community Centre and, to a lesser extent, Bellfield College. The language classes at Granville Public School commence with short prayers. Prayers and lectures are conducted at Auburn Community Centre on Thursday evenings. Bellfield College is an independent Islamic co-educational school which is commonly used outside school hours for community activities.
Reminded of the reasons for the delegate’s refusal of the Muhammadi Association’s application for sponsorship approval, Mr Hassan agreed to provide the Tribunal with evidence of arrangements with both Granville Public School and Bellfield College as well as Auburn Community Centre regarding occupation of these premises by the Association and use of the premises for religious purposes.
In addition, the Tribunal noted that it must be satisfied the Muhammadi Association meets all criteria for approval of its sponsorship application or, in the alternative, if any of the criteria in r.2.60A, r.2.60L and r.2.60S of the Regulations as applicable prior to 19 November 2016 are not met then it must affirm the delegate’s decision to refuse the sponsorship application.
The Tribunal also took independent evidence from Dr Naqvi in relation to his activities with the Association.
Documentation lodged after the hearing held 8 October 2019
After the first hearing, the Muhammadi Association’s representative forwarded a range of documentation including, relevantly:
1)copy of the NSW Government’s Education Department’s policy “Community Use of School Facilities” dated 11 November 2019. The policy states, inter alia, that schools are encouraged to make facilities available for use by the community and must not interfere with the school’s provision of quality learning programs. A written community use agreement must be entered into by the Principal;[3]
[3] of the NSW Government’s Education Department’s policy “Other Activities of a Religious Nature in Schools – Implementation document for Religious Education policy”. Relevantly, the document states that schools may wish to hold an event that contains religious elements such as commemorations, religious observances and multi-faith services. Such events are to be determined in consultation with the school community and parents are to be notified of the nature of the service;[4]
3)letter from Dr Sam Jeleile, CEO/Principal of Bellfield College at Rossmore[5] dated 23 October 2019. The letter confirms that Bellfield College is an independent co-educational school in NSW regulated by the NSW Education Standards with Authority and that, since 11 September 2018, the Association has been using the school’s premises outside school hours for community activities. Dr Jeleile says he understands the arrangement will continue until the Kemps Creek Property is ready for occupation;
4)Community Use Agreement made between Granville Public School and the Association dated 9 June 2018 for Community Language School – Urdu;
5)Independent Auditor’s Report addressed to the Muhammadi Association from CountTax Certified Practising Accountants dated 12 August 2019 as lodged with the Commission;[6]
6)letter from Muhammadi Association to Dr Naqvi dated 28 August 2013 confirming his appointment as a Resident Director – Religious Affairs together with a Duty Statement and Responsibilities;
7)letter from Hills Business Accountants, Certified Practising Accountants and Registered Tax Agents dated 11 October 2019 confirming: the Muhammadi Association is providing Dr Naqvi with salary, superannuation and other expense benefits totalling $61,679 per annum; and, the breakup of the total amount;
8)Commonwealth Bank Statement for the Muhammadi Association from 15 January with financial financials and schools to 2019 to 16 September 2019 confirming payments in respect of medical insurance for Dr Naqvi and family to BUPA;.
9)Statements confirming Dr Naqvi’s superannuation with Commonwealth Essential Super as at 30 June 2019 and 8 October 2019;
10)Commonwealth Bank Statement for the Muhammadi Association from 7 January 2019 to 10 October 2019 confirming payment of Dr Naqvi’s rent to Ray White at a property in Middleton Grange; and,
11)evidence of payment by the Muhammadi Association of medical insurance to BUPA for Dr Naqvi and his family.
[4] – 19 December 2019
The Secretary of the Muhammadi Association, Mr Hassan, and Dr Naqvi attended the second hearing. The representative did not attend.
Mr Hassan told the Tribunal that the Muhammadi Association had agreed to extend Dr Naqvi’s employment contract with the Association at its meeting on 7 August 2019. He agreed to provide the Tribunal with a copy after the hearing.
In relation to completion of the Kemps Creek Property, Mr Hassan said that electricity had been connected to the building and, as a result, the lifts and all lighting is fully operational. However, he added that the landscaping, bitumen work in the grounds and car park lights are yet to be undertaken and the Muhammadi Association is yet to award of contracts to undertake such works. As such, the Association does not yet have an Occupation Certificate for the building.
Relevantly, Mr Hassan also told the Tribunal that, pending completion of the Kemps Creek Property, the Muhammadi Association has arranged to conduct its religious activities at facilities operated by the Fairfield City Council: Villawood Hall; Prairiewood Hall; and, Edensor Park Hall. It is no longer using the Auburn Community Centre. The Association may use Bellfield school, on occasions only. Mr Hassan provided evidence of the following arrangements with Fairfield City Council in relation to hiring its facilities:
1)letters from Fairfield City Council dated 5 December 2019 and 9 December 2019 addressed to the Association confirming casual hire of:
a)Villawood Hall for ‘Community Lecture and Prayer Services’;
b)Prairiewood Hall for ‘Community Lecture and Prayer Services’;
2)Fairfield City Council Application for Regular Hire of Community Facilities for the hire of Edensor Hall by the Association for the period 23 January 2020 to 28 May 2020 for ‘Prayers & Lectures’ on Thursdays.
Documentation lodged after the hearing held 19 December 2019
After the hearing, the Muhammadi Association forwarded a range of documentation including, relevantly, an updated Community Use Agreement made between Granville Public School and the Association for use of school facilities for Community Language School – Urdu throughout the 2020 school year commencing 28 January 2020.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the applicant as a standard business sponsor.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval as a temporary work sponsor as set out in r.2.60A, r.2.60L and r.2.60S of the Regulations as applicable prior to 19 November 2016. Relevant extracts from the Regulations are set out in the Attachment to this decision.
Process for application
Regulation 2.60A(a) requires that the applicant has applied for approval as a temporary work sponsor in accordance with the process set out in r.2.61 of the Regulations. It requires the applicant to make the application for approval in accordance with the approved form, to pay the prescribed fee and, for applications made on or after 1 July 2013, to make the application by using the internet unless the Minister specifies an alternative means.
The Tribunal is satisfied on the basis of material in the Department’s file that the Muhammadi Association has applied for approval as a temporary work sponsor in accordance with the process set out in r.2.61 of the Regulations. Accordingly, the requirement in r.2.60A(a) of the Regulations is met.
Not an existing sponsor
Regulation 2.60A(b) requires that the applicant is not already a sponsor of the class to which the applicant is applying.
As noted above, the Muhammadi Association is applying for approval as a Long Stay Activity sponsor. Departmental records indicate that the Association is not already an approved sponsor of this class. Accordingly, the requirement in r.2.60A(b) of the Regulations is met.
Adverse information
Regulation 2.60A(c) requires that there is no adverse information known to Immigration about the applicant or a person associated with the applicant or it is reasonable to disregard such information. The terms ‘associated with’ and ‘adverse information’ are defined in r.1.13A and r.1.13B of the Regulations.
There is no evidence before the Tribunal to suggest to there is adverse information known to Immigration about the Muhammadi Association or an associated person. Accordingly, the requirement in r.2.60A(c) of the Regulations is met.
Capacity to comply with sponsorship obligations
Regulation 2.60A(d) requires the applicant to demonstrate that they have the capacity to comply with the sponsorship obligations applicable to a person who will be sponsored.
The Tribunal has had regard to documentation lodged with the Department and provided to the Tribunal as well as evidence publicly available from the website of the Commission.[7] Documentation considered by the Tribunal includes:
[7] of Endorsement for Charity Tax Concessions issued by the ATO to the Muhammadi Association dated 8 July 2005;
·audited Financial Report for the Muhammadi Association for years ended 30 June 2018 and 30 June 2019 downloaded from the Commission’s website and a further copy of the audited Financial Report for the year ended 30 June 2019 and auditor’s report from CountTax Certified Practising Accountants dated 12 August 2019 referred to above at para [14];
·Contract of Employment dated 31 November 2013 as varied by the signed letter dated 8 August 2019 confirming Dr Naqvi’s employment with the Muhammadi Association as Resident Director – Religious Affairs has been extended for a further 24 months and that, in addition to paying his annual salary and superannuation, the Muhammadi Association will also pay for rent of his house and private health insurance for himself and his family;
·Ray White Payment Gateway Service Request Form in relation to a property in Middleton Grange occupied by Dr Naqvi and his family;
·Commonwealth Bank Statements for the Muhammadi Association confirming:
opayment to Dr Naqvi of his salary;
opayment of superannuation to Dr Naqvi’s Essential Super account;
ofortnightly payments to Ray White of rent for accommodation at a property in Middleton Grange occupied by Dr Naqvi and his family; and,
omonthly payment to BUPA in respect health insurance cover for Dr Naqvi and family; and,
·letter from Hills Business Accountants dated 11 October 2019 confirming payments to Dr Naqvi in the financial year ended 30 June 2019 of $61,546 representing salary, superannuation, bonus, rent and health insurance. This will increase to $61,679 in the financial year commencing 1 July 2019.
Having regard to evidence provided, the Tribunal is satisfied that confirms that the Muhammadi Association has sufficient funds to employ Dr Naqvi in the role of Resident Director - Religious Affairs consistent with the Contract of Employment dated 31 November 2013 as varied by the letter dated 8 August 2019. Accordingly, the requirement in r.2.60A(b) of the Regulations is met.
A religious organisation that is lawfully operating
Regulation 2.60L(2)(b) requires applicants which are religious organisations seeking approval as a Long Stay Activity sponsor to demonstrate that they are lawfully operating in Australia. As noted above, the delegate refused the Association’s sponsorship application because evidence had not been provided that the Association’s community centre at 419 Blaxcell Street, South Granville was approved by the Local Council as a place of worship or assembly.
A ‘religious institution’ is defined in r.1.03 to mean a body:
·the activities of which reflect that it is instituted for the promotion of a religious object;
·the beliefs and practices of the members of which constitute a religion, due to believing in a supernatural being, seeing or principal and accepting canons of conduct that give effect to that belief do not offend against ordinary laws;
·that meets the requirements of s.50-50 in the Income Tax Assessment Act 1997 (the Tax Act); and,
·the income of which is exempt from income tax under s.50-1 of the Tax Act.

The Tribunal has had regard to the objects and the purpose of the Association as set out above at para [3]. It also acknowledges that, having received Notification of Endorsement for Charity Concession by the ATO, this is evidence the Association meets the requirements of s.50-50 of the Tax Act and that its income is exempt from income tax under s.50-1 of that Act. Accordingly, the Tribunal is satisfied that the Muhammadi Association is a ‘religious institution’ within the meaning of that term as defined in r.1.03 of the Regulations.
Next, the Tribunal has next considered whether the Association is lawfully operating. It has had regard to extensive documentation and evidence provided which confirms that the Association’s property at South Granville was sold with a view to it building a new place of worship and assembly. The Association acquired 22 acres and commenced construction of the Kemps Creek Property in western Sydney. The Penrith City Council Notice of Determination DA 13/1271 dated 24 November 2014 confirms that the Kemps Creek Property is approved as a Place of Public Worship. Although, shortly thereafter on 8 December 2014, there was a motion to rescind the resolution to approve the Kemps Creek Property as a Place of Public Worship, that motion was lost.
Although construction of the Kemps Creek Property building has been completed the Association is yet to obtain an Occupation Certificate owing to the fact that the concrete driveway and extensive car parking area requires a bitumen surface to comply with Penrith City Council’s development conditions and, further, the grounds need landscaping. Based on evidence provided, it is not anticipated that the Kemps Creek Property will be ready for occupation until March or April 2020. Pending issue of an Occupation Certificate the Association’s Religious Affairs Director, the nominee Dr Naqvi, has been conducting religious events at public facilities. Initially, services were conducted at the Auburn Community Centre. However, since mid-2019, the Association has been holding its lectures and prayer meetings at a range of facilities operated by Fairfield City Council including Edensor Park Hall, Prairiewood Hall and Villawood Hall. The Association has provided to the Tribunal evidence of its ongoing casual hire arrangements with Fairfield Council for these community facilities which, relevantly, expressly state the use is for ‘Community Lecture and Prayer Services’. The Tribunal is satisfied that Fairfield Council’s premises used by the Association have been approved by the Council as a place of assembly or worship. The Tribunal acknowledges that evidence of the Association holding regular religious functions and activities at Fairfield Council’s Edensor Park Hall and Prairiewood Community Centre is available on the Association’s website.[8]
[8] >
In light of the multiple arrangements that the Association has made with Fairfield City Council for ongoing casual hire of its facilities for prayers and lectures, the Tribunal recognises that the need for the Association to use Bellfield College for its religious activities may no longer be necessary. However, to the extent that the Association requires occasional use of the Bellfield school premises for religious activities, the Tribunal accepts that the NSW Education Department encourages its schools to make their facilities available for use by the community consistent with its Community Use of School Facilities policy, a copy of which was provided to the Tribunal. In this regard, the Tribunal accepts that the CEO/Principal of Bellfield College, Dr Sam Jeleile, has confirmed in his letter of 23 October 2019 that the Association has used Bellfield College premises on occasions in the past, in out of school hours, for its community activities. The Tribunal notes Dr Jebeili’s comment that he understands the arrangement will continue on an occasional basis during the transition period until completion of the Kemps Creek Property.
The Tribunal notes that the Association’s use of Granville Public School does not arise for consideration or comment as the Association merely conducts Community Language School - Urdu classes at this venue.
Based on documentation provided by the Muhammadi Association and confirmed by records on the Commission’s website, the Tribunal is satisfied that the Association is a registered charitable organisation and, further, its reporting is up-to-date. The Tribunal is also satisfied that based on documentation provided the Association is a religious organization which lawfully operating in Australia. Therefore, the requirement in r.2.60L(2)(b) of the Regulations is met.
Additional criteria
Regulation 2.60S provides additional criteria that must be met for an applicant to be approved as a sponsor. Broadly speaking, to meet r.2.60S of the Regulations, the Tribunal must be satisfied that the applicant has not taken any action, or sought to take any action that would:
·result in the transfer of costs to another person, or another person paying costs, associated with the applicant becoming an approved sponsor; or
·result in the transfer of costs to another person, or another person paying costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination.
The Tribunal must also be satisfied that the applicant has not recovered, or sought to recover, from another person costs associated with the sponsorship approval, or costs that relate specifically to the recruitment of a non-citizen for the purposes of a nomination: r.2.60S(3) of the Regulations. These requirements may, however, be disregarded if the Tribunal considers it reasonable to do so: r.2.60S(4) of the Regulations.
There is no evidence before the Tribunal to suggest that the Muhammadi Association has sought to recover or transfer costs associated with it becoming an approved Long Stay Business sponsor. Accordingly, the Tribunal is satisfied on the evidence before it that r.2.60S of the Regulations is met.
Conclusion
For the cumulative reasons given above, the Tribunal finds that the Association meets all the applicable criteria prescribed in the Regulations to be approved as a Long Stay Activity Sponsor. The Tribunal finds that the term of approval as a sponsor is 3 years.
DECISION
The Tribunal sets aside the decision not to approve the application and substitutes a decision that the applicant is approved as a Long Stay Activity Sponsor.
Katie Malyon

Member
ATTACHMENT - Extracts from the Migration Regulations 1994

2.60A Criterion for approval as a temporary work sponsor
For subsection 140E(1) of the Act, the criterion that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a temporary work sponsor is that the Minister is satisfied that:
(a)the applicant has applied for approval as a temporary work sponsor in accordance with the process set out in regulation 2.61; and
(b)the applicant is not already a sponsor of the class for which the applicant is applying; and
(c)      either:
(i)there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and
(d)the applicant has the capacity to comply with the sponsorship obligations applicable to a person who is or was a sponsor of the class for which the applicant has applied.
2.60L Criterion for approval as a long stay activity sponsor
(1)For subsection 140E(1) of the Act, and in addition to the criteria set out in regulation 2.60A, this regulation sets out the criterion that must be satisfied for the Minister to approve an application by a person for approval as a long stay activity sponsor.
(2)      The person must be:
(a)      …
(b)      a religious institution that is lawfully operating in Australia; or
(c)…
(d)…
(e)…
(f)       …
(g)      …
2.60S Additional criteria for all classes of sponsor — transfer, recovery and payment of costs
(1)For subsection 140E(1) of the Act, the criteria in this regulation are in addition to the criteria in regulations 2.59 to 2.60M.
(2)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor mentioned in any of regulations 2.59 to 2.60M include a criterion that the Minister is satisfied that:
(a)the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and
(b)the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and
(c)the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
(d)the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
(e)…
(f)...
(3)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor mentioned in any of regulations 2.59 to 2.60M include a criterion that the Minister is satisfied that:
(a)the applicant has not recovered from another person some or all of the costs, including migration agent costs:
(i)     associated with the person becoming an approved sponsor; or
(ii) that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
(b)the applicant has not sought to recover from another person some or all of the costs, including migration agent costs:
(i)     associated with the person becoming an approved sponsor; or
(ii) that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
(c)…
(d)…
(4)However, the Minister may disregard a criterion referred to in subregulation (2) or (3) if the Minister considers it reasonable to do so.
oOOo

[2020] AATA 527

25 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies