Song (Migration)

[2018] AATA 5586

Song (Migration) [2018] AATA 5586 (27 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Le Song

CASE NUMBER:  1600455

HOME AFFAIRS REFERENCE(S):             BCC2015/513400

MEMBER:Warren Stooke AM

DATE:27 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

· cl.187.233 of Schedule 2 to the Regulations;

Statement made on 27 November 2018 at 4:07pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Minister of Religion – ANZSCO descriptor – central theme of the position – allowing variances for different religious and cultural backgrounds – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cl 187.233

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 and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 February 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Minister of Religion (ANZSCO 272211).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 Schedule 2 to the Regulations because the nomination lodged by Holy Tantra Esoteric Buddhism was refused by the delegate.

6. The applicant appeared before the Tribunal on 20 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Master Wang.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. The applicant was represented in relation to the review by her registered migration agent.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the nominee has an approved standard business sponsor.

Nomination of a position  

1. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

2. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made nomination

   ·the nomination has been approved and has not been subsequently withdrawn

   ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

   ·the position is still available to the applicant, and

   ·the visa application was made no more than six months after the nomination of the position was approved.

The Nominator’s Evidence

13.The applicant’s representative provided material that Holy Tantra Esoteric Buddhism Incorporated is a non-profit charitable religious organisation incorporated in Tasmania on 26 April 2000 and registered with the ACNC on 3 December, 2012. It receives tax concessions, GST concessions, FBT rebate and Income Tax exemption. The organisation is established solely for the purpose of furtherance of the entity's religion denomination - Holy Tantra Esoteric Buddhism. The World Headquarters of the Holy Tantra Esoteric Buddhism is in Tasmania and it has been active in the state since the 1990s. In addition the following overview has been provided to the Tribunal:

“The Buddhist organisation fosters the research and development of Holy Tantra Jin-Gang-Dhyana Buddhism teachings, and is responsible for the collection, re­organisation and composition of Holy Tantra Jin-Gang-Dhyana Buddhism's doctrines and the Holy Tantra Dragon Discourse of the spiritual leader.

Holy Tantra Esoteric Buddhism Incorporated conducts several activities (including multi-faith gatherings) during the year, where the Tasmanian public are invited to attend. These include weekly free Buddhist teaching and meditation classes on Tuesdays and Saturdays.

Each year, Holy Tantra Esoteric Buddhism Inc. also holds the World Buddhist Sangha Youth (WBSY) General Conference in different countries. Representatives of over 48 different countries around the world gather to discuss important issues such as global unity and world peace.

However, despite the connection with the greater social community, the core of the organization relies heavily on the continued training and teaching of its members, including regular prayer and services, holding spiritual activities and worship that elevate one's spiritual quality. Dharma gatherings include discussion of Buddhist Dharma and the study/interpreting of Buddhist Scriptures from all 12 Vehicles of Buddhism. These discussions require conductors with high qualifications and knowledge to be able to lead each spiritual congregation.

Tasmania houses the World Headquarters of the Holy Tantra Esoteric Buddhism and the teachings of Tantrayana Dharma are disseminated around the world as spiritual followers from local community and overseas (predominantly Asian countries such as mainland China, Taiwan, Hong Kong, Thailand, Indonesia, India, Nepal etc) attend religious retreats and pilgrimages here in Tasmania.”

1. It was submitted by the representative that at present the Holy Tantra Esoteric Buddhism Incorporated faces a shortage of qualified Ministers of Religion to fill positions of Abbots from the Australian workforce. These positions require high levels of formal qualifications, experience and commitment.

2. Further, it was submitted that an Abbot is responsible for the management and order of the entire temple and the monks and nuns practicing within the temple. A qualified Abbot requires at least 4 years of experience as a Tan-Jiang-Shi and 10 years of religious and spiritual training in Holy Tantra Buddhist Dharma and pass examinations to show the skill to religiously manage an entire temple and its members, including the skill to conduct and lead various gatherings, Buddhist meetings, classes etc.

3. The applicant’s representative also submitted that the Abbots (Minister of Religion) of the Holy Tantra Esoteric Buddhism Incorporated administer to the 56 Chinese ethnic groups. They focus on leading the students and pilgrims within each temple (Dharma hall). The Abbots are religious practitioners with no worldly possessions. They lead a cloistered existence because they work and live within the Dharma Halls. The heart of Holy Tantra Esoteric Buddhism Inc. lies within its members, which require leaders such as Abbots to provide Buddhist training and spiritual guidance to all the members, and motivate them for their continued zeal in their religious life and meditation. Hence, Abbots directly tend to the spiritual needs of the students residing in each respective temple of the organization.

4. The Master of the Temple provided the Tribunal with evidence that the position of the nominee carries out the following duties:

   a.Administration of blessings for the deceased, where an example was provided that the cremated remains of followers are brought from China for the nominee to administer the last rights and blessings for the deceased in the journey to the afterlife and blessings for the family members;

   b.The administration of marital rights and blessings in accordance with the Buddhist rituals and teachings of the temple and to celebrate the union of a man and woman;

   c.Involvement in social welfare support to the community, including fundraising and donations to other religious groups, such as, the Salvation Army;

   d.Spiritual sermons and blessings to the followers of the temple and the community generally;

   e.Meditation and support to the community, including the sick and infirmed;

   f.Teaching and prayer sessions for the temple followers;

   g.Support to the community whatever the religious following may be.

5. It was also submitted by the representative, as the Abbot of the Temple, the nominee also participates in the welfare of the community, encouraging people to be aware of their responsibilities by planning and organizing Dharma meetings to pray for Buddha to spiritually bless the people and the land of Hobart, Tasmania and Australia. She also plans and convenes activities of Dharma dissemination in Hobart, Tasmania and Australia; as well as to enhance the harmony and unity of people of Hobart, Tasmania and Australia.

6. The Master of the Temple provided the following statement in relation to the nominated position:

   “The nominee does perform most of the tasks of a Minister of Religion (ANZSCO 272211) in her role as the Abbot serving the spiritual needs of the Buddhist sanghas of temple (congregation) in line with what is stated in policy 23.2 Eligible positions:

   Under policy, the occupation of Minister of Religion 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, iman, minister of religion, monk, nun, brother/sister, pastor, priest, rabbi and Salvation Army captain (religious duties). Duties common to most of these positions including leading congregation in worship, administering rites and sacraments and ministering to the spiritual needs.”

Nominee’s Evidence

1. The nominee outlined to the Tribunal that she undertakes the following functions in her role as the Temple Abbot:

   a.Teaching about the teachings and philosophy of Budda;

   b.Teaching of the scriptures as with traditionalist Buddhism;

   c.Writings and essays for publication in journals;

   d.Preparing scriptures for those who have passed away;

   e.Instruction in the martial arts with chants for cadets and students;

   f.Arrange worship details including musical arrangements for the living Buddha;

   g.Participate in self-thinking and thought seminars conducted by the Master;

   h.Sharing beauty, law scriptures and the writings of the elders and leaders;

   i.Conduct weddings; Memorial ceremonies and oversee the blessings with cremations, which is a major part of her duties especially in bringing the ashes of loved ones through to the afterlife;

   j.Undertaking memorial services after a loved one is deceased, which occurs on the 49^th and 81st day after death.

2. In general terms, the Master of the Temple provided evidence that the Temple can operate freely in Australia, however the traditional followers in China cannot openly practice their religion. It was explained that this is why the church has established its world-wide network, which emanates from Tasmania, Australia, to all over the world. The religion dates back to the 5^th century and has followed the teachings of Buddha, as a recognised traditional Buddhist sect, with Zen.

3. The representative for the applicant submitted that the ANZSCO descriptors have been written against the backdrop of a Western culture and that the nominated position must be viewed within the context of a different culture. He stated that the Abbot leads the Temple in the hierarchy and that the nominee’s position is second to Master Wang.

4. It was further submitted that the duties of a Minister of Religion are complied with in the position subject to the nomination.

5. The Tribunal in considering whether there is compliance with the ANZSCO descriptor for the relevant position is mindful that there will be variances when considering different religious and cultural backgrounds. As such, the Tribunal needs to be satisfied that the central theme of the position meets those duties that have been described as being required. In the present case, the Tribunal notes that there is a dominance of emphasis on teachings, however, there is clear evidence that the nominee’s position administers specific rituals in relation to the sacraments of marriage and with the administration of blessings for those who have passed, together with significant contact with the followers of the religion and the community at large, including support for charities and the needy.

6. Given that the Tribunal is satisfied that the application by the proposed sponsor meets the requirements of r.5.19(4)(h)(ii)(D), the Tribunal is satisfied the applicant will meet cl.187.233.

7. Therefore, cl.187.233 is met.

8. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

   · cl.187.233 of Schedule 2 to the Regulations;

Warren Stooke AM
Member

ATTACHMENT A

187.233(1)      The position to which the application relates is the position:

(a)nominated in an application for approval that seeks to meet the requirements of:

1. subparagraph 5.19(4)(h)(ii); or

2. subregulation 5.19(4) as in force before 1 July 2012; and

(b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

1. The person who will employ the applicant is the person who made the nomination.

2. The Minister has approved the nomination.

3. The nomination has not subsequently been withdrawn.

(4A)Either:

(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

1. The position is still available to the applicant.

2. The application for the visa is made no more than 6 months after the Minister approved the nomination.