Sydney Full Gospel Church (Migration)

Sydney Full Gospel Church (Migration) [2021] AATA 5348 (6 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sydney Full Gospel Church
CASE NUMBER:  1905466
HOME AFFAIRS REFERENCE(S):          BCC2018/759351
MEMBER:Karen McNamara
DATE:6 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 06 December 2021 at 2:53pm
CATCHWORDS
MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – position of Music Director – financial capacity to employ the nominee for at least two years – actively and lawfully operating a charity business in Australia – updated financial information – ownership of properties – terms and conditions of employment no less favourable – genuine need for the employment – no adverse information – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 2.57, 2.59, 5.19
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 6 March 2019, to reject the application by Sydney Full Gospel Church (the applicant) for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 15 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3) (d) (i) of the Regulations because the delegate was not satisfied that the applicant demonstrated the financial capacity to pay the full-time salary for the nominated position for at least 2 years.
The applicant applied to the Tribunal on 8 March 2019, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 24 November 2021, the applicant represented by Pastor Dr Raymond Beom Seok Kim appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Hae Mi Lee (the nominee) in the related matter for the subclass 186 visa (AAT Case file 1908695) and Ms Sunny Kwon (Church Office Administrator). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
Non-Disclosure Certificate (s.375A of the Act) – Invitation to comment
The Tribunal was provided with a section 375A Certificate (the certificate) dated 10 November 2021. The Tribunal was of the preliminary view that the certificate was invalid as it did not sufficiently identify documents or information that should not be disclosed. A request was made to the Department to re-issue the certificate.
On 15 November 2021, the delegate for the Minister revoked the certificate and reissued a certificate under s.375A of the Act specifying documents on the Department file, which they claimed the release of, would be contrary to public interest as:
o   it it may disclose or enable a person to ascertain the existence or identity of, a confidential source of information, and
o   may reveal the investigative methods of the Department of Home Affairs in obtaining relevant information, and
o   may endanger the life or physical safety of a person, and
o   where information was provided ‘in confidence’ the provider of the information has not consented to the disclosure of the information to the review applicant.
A copy of this certificate was provided to the applicant on 15 November 2021
On 16 November 2021, the applicant’s authorised representative wrote to the Tribunal addressing the validity of the s375A certificate and the Tribunal’s letter of 12 November 2021, inviting comment under s359A of the Act.
In regard to the s375A certificate the representative advised:
‘…We are also instructed to question the validity of the certificate;
- The certificate does not specify why the disclosure of the information or documents would be contrary to the public interest; and
- The certificate does not contain sufficient detail to identify the claimed harm to the nation or public that its release could lead to.
The information is significant to the decision to be made and the consequences are very serious for the Nominator and the Nominee. In this regard, the administration of justice for the Nominator and the Nominee would be frustrated by the withholding of the documents or information.
The injury to the applicants is substantial if the documents are withheld. We submit on balance, there is a greater public interest in having the information disclosed.
We ask that Tribunal exercises its discretion to provide further information which it considers would be the reason or a part of the reason for affirming the decision under review…’
On 17 November 2021 the Tribunal responded to the applicant in regard to the s375A certificate as follows;
‘As per your response dated 16 November 2021, the member is satisfied as to the validity of the 375A certificate and that the gist of the information has been provided to the applicant under s.359A of the Act, namely [details deleted]……….
The member will take evidence at the hearing regarding the validity of the certificate and response from your clients in regard to the information conveyed to your clients under s.359A of the Act…’
At the hearing the applicant was invited to make submissions as to the certificate's validity and discussed with the applicant the gist of the information to enable the applicant to comment on the validity of the certificate and whether the information should be released.
The applicant accepted that the certificate was valid and did not require the information to be released. The Tribunal is satisfied that the certificate was valid and that any procedural obligations had been discharged.
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 Temporary Residence Transition nomination stream set out in reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Background
The applicant is a registered not-for-profit organisation providing religious services and support to the broader Australian community with focus on the Sydney Korean Australian community. The Church was established in 1979 and is based in Greenacre (a suburb of Sydney) NSW. The Church’s activities include worship services, Sunday school, Bible study, care programs and other programs designed to further assist the religious wellbeing of members in the community. The Church is also involved in activities that support the elderly, homeless, other mission centres and religious organisations requiring assistance.
On 15 February 2018, the applicant lodged an application for an employer nomination for the position of Music Director (ANZSCO 211212) under the Temporary Residence Transition nomination stream. The nominated base rate of pay and guaranteed annual earnings are $55,000 per annum.
The applicant sponsored Ms Hae Mi Lee for her Subclass 457 Visa, which Department records confirm that she held at the time of the nomination application.
Department records show that the applicant was most recently granted approval as a standard business sponsor (SBS) on 4 September 2020 to 4 September 2025.
Information before the Tribunal shows that the nominee commenced employment with the applicant in the position of Choral Director in June 2009. From August 2011 until September 2015 the nominee was employed on a full-time basis in the position of Choral and Music Director. Department records show that the nominee was granted a 457 Visa on 8 September 2015. The nominee since 1 October 2015 has worked full time with the applicant in the position of Music Director.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
The Tribunal discussed with the applicant the requirements of r.5.19(3). The following is a summary of the oral and written evidence provided to the Tribunal during and following the hearing.
The application must be compliant: reg 5.19(3)(a)
Regulation 5.19(3)(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 relevant person and occupation and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly, the requirements of r.5.19(3)(a)(i) are met.
The application for approval identifies Ms Hae Mi Lee who according to Department records, was granted a subclass 457 Visa on 8 September 2015 on the basis of satisfying cl.457.223(4) of Schedule 2. Accordingly, the requirements of r.5.19(3)(a)(ii) are met.
The occupation identified in the application is Music Director (ANZSCO 211212). The Tribunal is satisfied based on the oral evidence provided by the applicant and the nominee, the nominee’s contract of employment, taxation and payroll records and Department records, that the occupation identified is the same occupation as that carried out by the nominee as the holder of a subclass 457 Visa. The Tribunal is also satisfied that this occupation carries the same four digit code as the occupation carried out by the nominee whilst she held the Subclass 457 Visa. Accordingly, the requirements of r.5.19(3)(a)(iii) are met.
In support for identifying a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control, the Tribunal accepts the evidence provided by the applicant in the form of submissions (including the representatives submission dated 12 November 2021) and oral evidence provided at the hearing.
The Tribunal is satisfied on the information before it, that the application for approval identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control. Accordingly, the requirements of r.5.19(3)(a)(iv) are met.
As the criteria in r.5.19(3)(a)(i), r.5.19(3)(a)(ii), r.5.19(3)(a)(iii) and r.5.19(3)(a)(iv) are satisfied, accordingly the requirements in r.5.19(3)(a) are met.
Status of the nominator: reg 5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
The Department’s records confirm the applicant was most recently approved as a standard business sponsor on 4 September 2020 to 4 September 2025.
The applicant has provided to the Tribunal, copies of BAS returns and financial statements, recording the business has income derived from but not limited to tithes and offerings and has paid wages and withheld tax. The applicant’s financial statements confirm that the applicant derives income from operating a Church and charity services. ABN records before the Tribunal confirm that the Church’s business name is registered.
Based on information before it, including that noted above and the applicant’s oral evidence, the Tribunal is satisfied that the nominator is actively and lawfully operating a charity business in Australia and did not, meet regulation 1.20DA or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor.
Given the above, the requirement in r.5.19(3)(b) are met.
Previous employment of the nominee: reg 5.19(3)(c)
Broadly speaking, to meet the requirement in reg 5.19(3)(c), either:
· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
· the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.
Evidence before the Tribunal shows that the nominee was granted a subclass 457 Visa on 8 September 2015. The nominee has continued to be employed by the applicant on a full time basis in the occupation of Music Director whilst holding a 457 visa since 1 October 2015. The applicant has provided copies of the nominee’s ATO PAYG summaries, NOA’s, bank statements and payroll records confirming that the nominee, during the term of her employment with the applicant, has been remunerated on a full-time basis.
Based on this evidence, the Tribunal is satisfied the nominee has been employed in a full-time capacity by the applicant as a Music Director since 1 October 2015 whilst holding a Subclass 457 visa. The Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 Visa for at least two years in the three-year period immediately before this nomination application was made. The requirements in r.5.19(3)( c)(i) have therefore been met.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: reg 5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
The Tribunal notes that the occupation, for which the nominee held the Subclass 457 Visa, is that of Music Director (ANZSCO 211212). As the occupation is not one of those specified in the relevant instrument for the purposes of r.5.19(3) (c )(ii), the nominee is not a person described in r.5.19(3) (c )(ii) and the applicant is therefore not exempt from having to satisfy the requirement in r.5.19(3)(d). As the nominee is a person described in r.5.19(3)(c)(i), the applicant must satisfy the requirements of r.5.19(3)(d).
The delegate refused the application on the basis, the applicant did not demonstrate financial capacity to employ the nominee for at least two years.
The Tribunal has formed a different view and accepts the evidence presented by the applicant that the applicant has the financial capacity to employ the nominee for at least two years. The Tribunal notes that contemporary financial evidence has been presented to it which demonstrates a stronger financial position than that which was provided to the delegate in the original application.
Evidence before the Tribunal shows that at the time the delegate made their decision, over two consecutive financial years (2016/17 & 2017/18) the applicant recorded respective net losses of ($24,866.72) and ($189,661.23). At the time of this decision over 3 years have lapsed since the application was lodged with the Department. In support of their review application, the applicant has made available to the Tribunal contemporary financial statements and BAS returns attesting to the applicant’s current financial capacity.
In considering whether the applicant has the financial capacity to pay the nominee the nominated full-time salary of $55,000 per annum for at least two years, the Tribunal has taken into consideration evidence before it, including the applicant’s more recent financial statements, documents submitted to the Australian Charities and Not for profits Commission (ACNC), ATO and bank statements.
The Tribunal notes that the applicant’s recent financial statements show that the applicant has continued to report consistent income through payment of tithes and offerings, despite reduced face to face church services due to COVID lockdowns. The applicant’s 2020 Profit and Loss statement recorded a net loss ($151,163) whilst recording net equity of $1,439,084. The applicant’s 2021 Profit and Loss statement records a net profit of $537,259 with net equity of $1,976,344.
At the hearing the Tribunal discussed with the applicant the delegate’s concerns. Pastor Kim and Ms Kwon told the Tribunal that the recorded losses of previous financial years did not mean that the Church was experiencing financial problems. The Church’s assets include outright ownership of the Greenacre church buildings and land in addition to ten other properties, most of them without any loans. Evidence before the Tribunal supports the Church’s ownership of said properties.
Despite the reduction in face-to-face services, the Church’s income has remained steady through the continuation of parishioner payment of tithes and offerings via online and direct deposits. The recent Sydney COVID lockdowns has resulted in the Church providing live streaming of services and a reduction in expenses through the suspension of particular functions including its minibus transportation service for parishioners, reduced meetings and gatherings and overseas evangelism trips have been put on hold.
The Tribunal has also afforded consideration to evidence including the nominee’s PAYG summaries supporting that the nominee has been continuously employed by the applicant on a full-time basis since the 2013 financial year. The business and nominee’s bank account statements and PAYG’s support the nominee has received during the financial years 2017 to 2021 gross payments ranging from $53,871 to $54,908 plus superannuation.

The Tribunal has afforded consideration to the financial evidence before it and is satisfied on balance the applicant has the financial capacity to pay the nominee a full-time salary and maintain the employment of the nominee on a full-time basis for two years.
The Tribunal has also considered the applicant’s bank account statements, BAS returns, ACNC returns and payroll records, which show the applicant has continued to meet payroll and operating costs. The Tribunal has also taken into consideration evidence which shows the nominee has been employed by the applicant on a full-time basis since the 2013 financial year. The nominee’s bank account statements, PAYG’s, NOA’s and applicant’s payroll records, support the nominee has received since 2016/17 financial year, salary ranging from $53,871 to $54,908 per annum. The nominee’s superannuation statement provided to the Tribunal supports that the applicant has met their superannuation obligations and paid the nominee superannuation.
Based on the evidence before it, the Tribunal is satisfied the applicant has the financial capacity to pay the nominee a full-time salary and maintain the employment of the nominee on a full-time basis for two years.
Accordingly, the requirement in r.5.19(3)(d)(i) is met.
The Tribunal has had regard to the most recent employment agreement dated 3 September 2021. The contract sets out the terms and conditions of employment and indicates that the period of employment is for a fixed term of 2 years from the date of the visa grant, with prospects of renewal by mutual consent. The terms and conditions of employment do not preclude the possibility of extending the period of employment. The contract stipulates a base salary of $55,000 per annum plus superannuation, with hours of work 38 hours per week.
The Tribunal is satisfied based on the employment agreement dated 3 September 2021 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(3) (d) (ii) is met.
As the criteria in both r.5.19(3)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(3)(d) are met.
No less favourable terms and conditions of employment: reg 5.19(3)(e)
Regulation 5.19(3)(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 Tribunal has had regard to the current employment agreement dated 3 September 2021. The contact of employment stipulates the hours of work 38 hours per week. The nominee’s leave entitlements include annual, personal/carers leave in addition to long service and compassionate leave in accordance with the relevant state legislation and National Employment Standards.
The Tribunal has received copies of the nominee’s PAYG’s since 2013 financial year and bank statements for the period October 2019 to October 2021, confirming that the nominee has been paid a regular wage by the applicant. Superannuation information provided to the Tribunal support that the nominee is being paid superannuation.
The Tribunal has taken into consideration evidence before it and is satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.
The Tribunal is therefore satisfied on the evidence before it that the terms and condition applicable to the position, will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: reg 5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
Department records show that the applicant’s most recent standard business sponsorship approval was granted on 4 September 2020.
From 18 March 2018, a number of criteria relating to approval as a standard business sponsorship are no longer applicable even in relation to applications for approval made prior to that date. These were:[1]
·if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more - the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing (r.2.59(d));
·if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months - the applicant has an auditable plan to meet the benchmarks specified in the written instrument (r.2.59(e));
·if the applicant has previously been a standard business sponsor, either the applicant fulfilled any commitments and complied with applicable obligations relating to training requirements, or it is reasonable to disregard that requirement (r.2.59(j)).
[1] r.2.59(d), (e), and (j) were repealed by F2018L00262, and specified to no longer apply to applications for approval as a standard business sponsor made, but not finally determined before 18 March 2018 (see clause 6704(2) of Schedule 13 of the Regulations).
For subclass 482 nomination applications lodged on or after 12 August 2018, sponsors (or individuals who have applied to become a standard business sponsor or a labour agreement sponsor) must pay the applicable nomination training contribution charge (referred to as a contribution to the SAF or the ‘SAF levy’). The nomination training contribution charge is payable in full at the time of lodging a nomination application. The payment of a SAF levy replaces the training benchmark requirements and obligations relating to training requirements for approval as a standard business sponsor.
The Tribunal finds that as the applicant’s most recent sponsorship approval as a standard business sponsor was on 4 September 2020 and because this approval was not subject to training requirements and obligations, the requirements for the applicant to have met them for the purposes of satisfying r.5.19(3)(f) are no longer applicable.
Accordingly, the Tribunal considers that the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: reg 5.19(3)(g)
Regulation 5.19(3)(g) 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 regs 1.13A and 1.13B.
ADVERSE INFORMATION – Invitation to comment
On 12 November 2021, the Tribunal wrote to the applicant under s 359A of the Act. The invitation sought comments from the applicant and stated as follows;
‘…In conducting the review, we are required by the Migration Act 1958 to invite Sydney Full Gospel Church to comment on or respond to certain information which we consider would, subject to any comments or response it makes, be the reason, or a part of the reason, for affirming the decision under review.’
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
[Details deleted.]
Additionally, Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
If the Tribunal relies on this information, it may find that you do not satisfy the requirements of r.5.19(3) and consequently the decision under review would be affirmed.
Sydney Full Gospel Church is invited to give comments on or respond to the above
information in writing.
The comments or response should be received by 26 November 2021. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator…’
As indicated previously in this decision, on 16 November 2021, the applicant’s authorised representative wrote to the Tribunal addressing the validity of the s375A certificate and the Tribunal’s letter of 12 November 2021, inviting comment under s359A of the Act.
In response to the adverse information under s 359A of the Act the representative stated;
‘…We are instructed to request further information pursuant to section 359A of the Act;
- [Details deleted]...’
On 17 November 2021 the Tribunal responded to the applicant’s request as follows;
‘…[Details deleted.]
The member will take evidence at the hearing regarding the validity of the certificate and response from your clients in regard to the information conveyed to your clients under s.359A of the Act.’
[Details deleted].
In consideration of whether the information currently before the Tribunal is ‘adverse’, the Tribunal turns to the definition of ‘adverse information’ and ‘associated with’ as defined in rr.1.13A and 1.13B.
'Adverse information' includes any adverse information relevant to a person's suitability as an approved sponsor or nominator, including having been the subject of administrative action (including being issued with a warning) by a competent authority (defined in r.2.57(1)), for a possible contravention of the law, found guilty by a court of an offence under a Commonwealth, State or Territory, law, being under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law, having become insolvent or has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading.
Regulation 2.57(1) provides that a 'competent authority' means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.
The Tribunal has considered whether the above information [specified] falls within the definition of ‘adverse information’ and notes that there is no evidence before the Tribunal at the time of this decision, to suggest that there is adverse information known to Immigration within the meaning provided in r.1.13A and r.1.13B.
Accordingly, the requirement in reg 5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: reg 5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have 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 is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the requirement in r.5.19(3)(h) is met.
Genuine need to employ nominee: reg 5.19(3)(i)
Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
At the hearing Pastor Kim told the Tribunal that music is integral to the Church’s operations. Operating a migrant church can be complex and it can be challenging in getting people to attend services. Music brings together people of diverse backgrounds and cultures. The position of Music Director supports the regular ongoing activities of the Church through liaising with the Pastor and Church leaders as to the music requirements for sermons and services. Music performance is included in all regular services and special events throughout the year. The position is critical in ensuring the smooth operation of services as well as encouraging congregation engagement with the church musically.
The position of Music Director became vacant when the previous incumbent left to go to Brisbane. The nominee has undertaken the tasks and responsibilities of the position initially in the capacity as Choral Director/Music Director since 17 August 2011. The nominee has continued to work in the position of Music Director since being granted a 457 visa on 8 September 2015.
The Tribunal is satisfied that the material and evidence provided by the applicant, supports there is a genuine need for the nominator (applicant) to employ the nominee as a paid employee to work in the position under the nominator’s direct control.
Accordingly, the requirement in r.5.19(3)(i) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19(3) 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.
Karen McNamara
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
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)     identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)      is actively and lawfully operating a business in Australia; and
(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i)       both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)      all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)       the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)      the terms and conditions of the person’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)       the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)      it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)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
(h)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
(i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

[2021] AATA 5348

6 December 2021

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Immigration

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