Oniyelu (Migration)

Oniyelu (Migration) [2024] AATA 2401 (19 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gbenga
Micheal O Oniyelu

Ms Bunmi Esther Oniyelu
Ms
Felix Semilore Oniyelu

Ms Favour Abidemi Oniyelu
REPRESENTATIVE:  Mr Edward Von-Shostov Nalbandian
CASE NUMBER:  2111316
HOME AFFAIRS REFERENCE(S):          BCC2021/439778
MEMBER:Warren Stooke AM
DATE:19 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 19 June 2024 at 5:54pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Labour Agreement stream – Minister of Religion – subject of an approved sponsorship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 2.72; Schedule 2, cl 482.212
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 Home Affairs on 25 August 2021 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 23 March 2021. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the Labour Agreement stream to work in the nominated occupation of Minister of Religion – ANZSCO Code: 272211.
The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because the applicant was advised that their prospective sponsoring employer THE GOSPEL FAITH MISSION INTERNATIONAL INCORPORATED did not have an approved nomination in place for them and the applicant was invited to comment or withdraw their application in writing, and was afforded the prescribed period of to do so. As clause 482.212 was not met by the applicant, the delegate found that the primary criteria for the grant of a Temporary Skill Shortage visa are not met by the applicant.
The applicants appeared before the Tribunal on 23 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Theophilus Adegboyega Ajadi, the Senior Pastor of ‘The Gospel Faith Mission International’ church. The applicants were represented in relation to the review.
The applicant stated that he had received and read the delegate’s decision, which was submitted to the Tribunal with the application for review.
The applicant stated that he understood there were three reasons for the refusal of the visa application that included: a certificate of recognised standard; the organisation had not demonstratively looked for an employee and the contract.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has an approved sponsor’s labour agreement in accordance with reg 2.72(5)(b), with the Commonwealth, represented by the Department, for the nominated occupation of Minister of Religion – ANZSCO Code: 272211.
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor, which states:
“(5)  The Minister is satisfied that:
(a)  if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short - term stream or Medium - term stream--the person is a standard business sponsor; or
(b)  if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Labour Agreement stream:
(i)  the person is a party to a work agreement (other than a Minister); and
(ii)  the work agreement authorises the recruitment, employment, or engagement of services of a person who is intended to be employed or engaged as a holder of a Subclass 482 (Temporary Skill Shortage) visa.”
In general, the Minister of Religion Industry Labour Agreement enables the applicant to sponsor skilled overseas workers in the occupations of Minister of Religion or Religious Assistants for temporary stays of up to 4 years and/or permanent residency. The terms and conditions of the agreement are non-negotiable and are represented in an agreement directly with the Australian government, with the Commonwealth represented by the Department of Home Affairs and with the sponsoring organisation representing themselves in relation to the terms and conditions subject to approval, which is documented.
The applicant provided evidence that he was granted a Bridging Visa C on 23 March 2021 with condition 8101 – no work rights and further evidence was provided, at hearing, that the applicant was granted a Bridging Visa C on 23 November 2021 that conferred work rights on the applicant.
The applicant stated that his current position is as the Resident Pastor of the Canberra church and that he has approximately 70 to 80 parishioners of mixed African and other backgrounds.
The applicant stated that he was undertaking a Bachelor of Arts and had completed Year III and was about to complete Year IV in 2024 and will complete the degree course by 2025, with having already completed 72 units of a 120 unit course.
Evidence of Theophilus Adegboyega Ajadi (the Senior Pastor of ‘The Gospel Faith Mission International’)
The nominating sponsor provided evidence that The Gospel Faith Mission International Incorporated was registered with ASIC from 5 January 2015 (advised, at hearing, as having been originally registered from 2009) and was assigned ABN: 26 568 125 491.
The Gospel Faith Mission International Incorporated was registered as ‘not for profit’ from 5 January 2015 under NSW Incorporation laws.
The Gospel Faith Mission International Incorporated was described by the nominating sponsor as an evangelical church that is Christian based and is located in Regents Park, Sydney, with approximately 250 parishioners. The nominating sponsor stated that he is the Director and Senior Pastor and has been with the organisation since 2012 and is an Australian Citizen, who originates from Nigeria.
The nominating sponsor stated that the applicant is engaged as the church head in Canberra and is responsible for the operation of the church on a paid basis, with a salary of $70,000 p.a. The nominee has been in the position since 2015.
The nominating sponsor submitted the following information relating to the Canberra operation of the organisation:
“The Gospel Faith Mission International Inc. Canberra (the Church) has been
operating from ACT, 2913, as a Mission Station, since January 2016. Mission Stations are Community Outreach Centres of our organisation run by volunteers whose lives have been positively impacted by the Church. They give their time to the Church on pure voluntary basis.
The Mission Station in Canberra evolved into a full church in March 2018 at the
request of the volunteers and members -- Australians, migrants and a large number
of young people, most especially from African background -- who are yearning for a
change of life through the teachings of our Lord, Jesus Christ.
The Church is a bible believing and soul winning church. We believe that Christians
are called to share their faith with those around them and know how to lead them to a saving knowledge of Jesus Christ. However, there are many times when someone
attends our service and trust Christ in Church.
In addition to religious services offered at the Church, we also have various
Community Outreach Ministries where we provide spiritual counselling, physical,
emotional and economic support to those in need in the community. The Church runs a very busy Food Bank ministry, in conjunction with Foodbank Australia, which
provides food for people in financial need who, regardless of their ethnicity, religious
belief, gender or relational status.
The Church also have an outreach ministry to the homeless in our local community.
We provide free packaged-meal and some Gospel literature, and during the winter
months we give out blankets, gloves, hats and warm clothing. We donate monthly to
Cancer Council ACT to assist the organisation to achieve it goal of beating cancer.
Our organisation is comprised of a team of dedicated volunteers, including a National Overseer, General Secretary, Treasurer and various members of the community who help us on a voluntary basis.
The Church has been under the tutelage of Pastor Gbenga Oniyelu (the Nominee)
since 05 March 2018 as our Church’s leader and dedicated Resident Pastor – Minister of Religion. The Nominee answers directly to the Most Senior Pastor, Dr. Theophilus Ajadi, of The Gospel Faith Mission International Inc, Sydney.
THE NOMINEE
The Nominee has been our Canberra Church Resident Pastor and Leader since 05
March 2018. He has been a serving ordained Minister since 09 July 2006, and
previously served as the Head Organist of the National Choir of The Gospel Faith
Mission International, Nigeria Convention for 6 years.
The Nominee has relevant work experience that is indispensable to our Church which no one else in Australia has. He was an Assistant Resident Pastor and Evangelist at the Gospel Faith Mission International Churches in Ojoo Ibadan and Oluyole, Nigeria, respectively, for approximately nine years. He was also the Resident Pastor of our Church in Sydney from September 2015 to February 2018. He has completed the standard and mandatory (Continuing Education) training prescribed by the Executive Council for it ordained Minister of Worship.
Over his time at our Church, the congregation have grown accustomed to the
Nominee’s spiritual leadership and religious guidance and instruction. He is a highly
valued member of our community in general, and the whole congregation view him as a true leader.”
The nominating sponsor stated that the organisation has two full-time employees undertaking pastoral work within the community and helping young people especially in the African community. The objective is to help young people from troubled backgrounds.
The nominating sponsor stated that a Fair Work Information Statement was provided to the nominee at the time of engagement.
The Tribunal asked the nominating sponsor if he has an approved sponsorship from the Department and the nominating sponsor stated: “Our labour agreement has not been approved yet”.
The nominating sponsor provided evidence that the applicant undertakes the following duties, which are described in ANZSCO Code: 272211 for a Minister of Religion:
a.preparing and conducting services of public worship and acknowledgments of faith;
b.preparing and delivering sermons, homilies and special talks, and planning music for services;
c.participating in the social and welfare activities of communities, encouraging people to be aware of their responsibilities, and organising participation in community projects;
d.conducting classes of religious instruction, and supervising prayer and discussion groups, retreats and seminars;
e.conducting premarital and family counselling and referring people to professional service agencies where necessary;
f.performing marriages, funerals and special memorial services according to tradition and ecclesiastical and civil law;
g.visiting members of the community in their homes, hospitals and other institutions to provide advice and religious comfort;
h.keeping records as required by the church and civil law, where the nominee undertook a course to gain accreditation as a marriage celebrant;
The nominating sponsor provided the Tribunal with a detailed position description for the nominated occupation of Minister of Religion prior to the hearing, that included the following information:
“The following are the Nominee’s role at the Church:
1. Prepares and conduct worship services
The Resident Pastor duties include preparing weekly sermons, preaching and
conducting worship services. It's his responsibility to interpret biblical scripture
for the congregation.
2. Pastoral Care
a) Responsible for the shepherding and spiritual oversight of the Church
congregation.
b) Pray with church members and guests who express difficulties in their life.
c) Collaborate with pastoral staff and leaders on pastoral care issues for
mutual support, input and direction.
3. Oversees and leads the Holy Communion and Teaching services of the
Church
The Holy Communion, known also as the Lord's Supper, represents the
greatest expression of God's love for His people. This Service is performed
once a month and must be presided over by the Resident Pastor. The Resident
Pastor must teach the significance of partaking of the Holy Communion -- that
it's a loving instruction from our Lord Jesus Christ to do in remembrance of
Him.
4. Guides and administers the core ministries of the Church – worship,
teaching, evangelism, community service, fellowship / Pastoral care,
administration / leadership
a) Co-ordinates ministry areas with volunteer staffs and leaders.
b) Liaises with and reports to church governance.
c) Oversees administration of personnel, financial and facility resources.
d) Oversees healthy church policy formation and implementation.
5. Leads and energises the outreach ministries of the Church including
evangelism, mission and benevolent ministry
a) Articulates and leads the missional priorities of the Church.
b) Provides the focus for evangelistic connections in the local community.
c) Oversees the welcoming and integration of newcomers to the Church.
6. Creates significant connections with the local community
a) Shapes the Church’s compassionate service to the poor and broken within
the local community.
b) Provides for Church presence, support and / or a voice in times of need or
challenge within the community.
c) Represents the Church at important public community events and
functions.
d) Develops positive public relationships and networks with key community
groups, leaders, and organisations.
7. Conduct premarital and family counselling for Church members
Premarital counselling is mandatory and helps for a successful marriage.
Couples are advised to attend at least few premarital counselling sessions,
before the marriage. At the initial meeting between the pastor and the couple,
the pastor will offer possible dates and times. During these sessions pastor
explains the values and significance of the Marriage, as seen from Pentecostal
Christian point of view.
8. Perform marriages as a religious Commonwealth-registered marriage
celebrant
The Resident Pastor conducts marriages according to the Rites of The Gospel
Faith Mission International Inc and solemnises Marriages according to the
Marriage Act of 1961.
9. Perform funerals and special memorial services according to tradition
and ecclesiastical and civil law
The Resident Pastor conducts funerals in a Church or other Chapels in case
funerals are needed for deceased persons who live far from the Church
location and performs Memorial Services at the grave site as requested by the
grieving family and in accordance with our Church traditions.
10. Visit hospitals, nursing care facilities and homebound individuals/age
group specific members
On regular basis, the Resident Pastor visits Church members and all
Australians of African background in nursing homes, hospitals and other
places.
11. Church administration and organization
Provide for office administration through volunteers for assignments such as
central record keeping of minutes, membership records, etc. for all boards,
committees and church business meetings as well as reports of church officers.
Pathway to Permanent Residence
We are seeking for the Nominee to be able to transition to permanent residence in the future so he can remain our Resident Pastor and Spiritual Leader indefinitely.
With his high level of qualifications, experience and skills, and excellent control of the
English language, the Nominee can relate to both the younger and older generations
within our Church, as well as the broader African community.
The Nominee is responsible for the preparation and delivery of all services in line with the beliefs and practices of The Gospel Faith Mission International Inc. He works with the younger generation of Africans in maintaining and nurturing the Pentecostal background and religion in developing responsible and accountable citizens.
He performs spiritual functions associated with the beliefs and practices of the Church and provides motivation, guidance and education in religion life for the people of the congregation and the wider community.
We want to target the 2nd and 3rd generation of Australians of African background
with English as their first language. There is also an increase in demand for religious
services, (Christenings, weddings, funerals, sermons, etc.) to be conducted in both
languages as often families comprise of mixed cultural background.
In multicultural Australia, we are often called upon to promote our culture and religion
in various community events like the National Multicultural Festival sponsored by the
ACT government. The Nominee has the qualifications, knowledge, skills, experience
and English language competence to fulfil this task and represent the Church in line
with our Pentecostal Christian faith.
The Church is looking for continuity and stability and the long-term employment of the Nominee is the way to go about in achieving that objective. Long term plans and
strategies have been developed and implemented to ensure that the Church stays
viable in the face of a changing community composition under the leadership of the
Nominee.
As our community ages, the Nominee will be called upon more frequently by families
who are about lose or have lost a loved one. We see an increasing demand in this
area as well as assisting grieving families during their moment of need.
Long-term employment of the Nominee will enable relationships to be formed with the community in the area as well as other organisations and religious orders. The
community too prefers the employment of the Nominee on long term or permanent
bases where over time a stronger and trustworthy relationship develops.
For all these reasons, we are looking for the Nominee to be able to transition to a
permanent work visa in the future.
Please do not hesitate to contact us if you require further information.”
The nominating sponsor stated that the applicant is responsible for the Church operation in Canberra and has two full-time employees who undertake pastoral work; teaching; helping the needy, the poor and young people, where most are of African descent and they are mentored to become better citizens.
The Tribunal asked the nominating sponsor: Do you have an approved business sponsorship and the nominating sponsor responded: The Labour Agreement has not been approved, as the Department believed there was not enough evidence to source for the position from within the wider community and issues with the training and contract.
The nominating sponsor stated that it was proposed that the position would be full-time, with a salary of $70,000 plus 11.0 per cent superannuation contributions for 38 hours of work per week. This information was confirmed in a contract of employment signed by the parties on 30 May 2024 and submitted post hearing.
The nominating sponsor stated that the position was subject to an employment contract, which was confirmed and dated as 30 May 2024, post hearing.
The nominating sponsor provided evidence that the applicant is undertaking a Bachelor of Arts, in Philosophy and Theology at the Holy Apostles College and Seminary in Connecticut, USA.

The nominating sponsor provided evidence that the applicant was ordained in the church in Nigeria on 9 July 2006.
The nominating sponsor provided the Tribunal with an organisation chart that identifies the applicant as the Head of the Church in Canberra.
The nominating sponsor provided evidence that the applicant undertook a PTE English language test on 5 March 2019 with an overall test score of 61.
Other criteria
The issue in this case is whether the applicant has an approved sponsor’s labour agreement in accordance with reg 2.72(5)(b), with the Commonwealth (represented by the Department) for the nominated occupation of Minister of Religion – ANZSCO Code: 272211 to support the criteria for the grant of a 482 Visa.
Conclusions
The Tribunal is satisfied that the applicant is genuinely employed as a Minister of Religion in the Gospel Faith Mission International church, as the Head Pastor in Canberra, and that the duties undertaken comply with the job description in ANZSCO Code: 272211 for the nominated position of Minister of Religion.
Further, the Tribunal is satisfied that the applicant has the requisite experience as an ordained Minister since 9 July 2006 and Registration in Australia to undertake civil ceremonies, as a marriage celebrant, and the qualifications (based on academic and experience) to meet the requirements of the role.
Further, the terms and conditions of employment are within the pay-scales relevant for the occupation, at $70,000 p.a., and documentation has been provided that satisfies the superannuation contribution requirements.
Finally, the Tribunal is satisfied on the basis of the evidence at hearing and as submitted prior to and subsequent to the hearing, that the applicant does not have an approved sponsor Labour Agreement with the Commonwealth. As such the applicant does not meet the requirements of reg 2.72(5)(b) and the cl 482.212.
For these reasons cl 482.212 is not met.
On the basis that the primary applicant has not met cl 482.212, it follows that the secondary applicants are not members of a family unit that has met the required criteria for the grant of a 482 Visa.
As one of the essential requirements for the visa is not met, the decision under review must be affirmed.
The Tribunal acknowledges that the explicit reasons for the refusal of the application were vested with the Commonwealth, as the ultimate body responsible for the compliance with the terms and conditions of the Labour Agreement, which is non-negotiable, however, the Tribunal considers that, prima face, it would appear that the nominating sponsor’s church is professionally operated and is making a significant contribution to a section of the community of African descent, where the role in mentoring youth of disadvantage is critical to the functions of civil society.
Ministerial Reference
Whilst the applicant has not made an application for a Ministerial Reference, the Tribunal notes that s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister considers that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department's website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening: >
The guidelines that relate to unique or exceptional circumstances, include compassionate circumstances regarding an applicant's health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship; exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia; and circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation; or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome.
Given that the Tribunal is not satisfied that the applicant’s application was accompanied by evidence that meets reg 2.72(5)(b) and cl 482.212, at the time of decision, the Tribunal notes that it is available to the applicant to make a Ministerial Referencepursuant to s.351 should the applicant elect to do so. In this context, the Tribunal considers that the work undertaken by the applicant is seriously beneficial to the African community in Canberra and the programmes offered by the church in their obligation to engage in pastoral care will be of considerable benefit to the Australian community, which in this case, the circumstances of the nomination may not have been fully considered, given the additional evidence provided in the review of the nomination.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.
Warren Stooke AM
Member

[2024] AATA 2401

19 June 2024

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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