The Vinh Duc Buddhist Association Incorporated (Migration)

The Vinh Duc Buddhist Association Incorporated (Migration) [2017] AATA 1990 (25 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Vinh Duc Buddhist Association Incorporated
CASE NUMBER:  1516330
DIBP REFERENCE(S):  BCC2015/1400310
MEMBER:John Cipolla
DATE:25 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 25 October 2017 at 10:36am

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Direct Entry Nomination stream – Nominee employed on a full-time basis in the position for at least 2 years – Financial capacity to operate as a business
LEGISLATION
Migration Act 1958, s 245AR(1)
Migration Regulations 1994, r 1.13A, r 1.13B, r 5.19

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 on 23 November 2015 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 15 May 2015. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d) of the Regulations because the delegate was not satisfied that the nominating business was able to demonstrate that they could provide the nominee with full-time employment for at least 2 years.
The applicant appeared before the Tribunal on 20 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the proposed nominee Mr Anh Khoa Le. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by its registered migration agent. 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(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 need for the nominator to employ a paid employee to work in the position under their direct control.
In this case, the application was made on form 1395 (internet) and was accompanied by the prescribed fee. The applicant the Vinh Duc Buddhist Association is a religious incorporated association. The association has a temple in Smithfield NSW.
Accordingly, the requirement in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The evidence before the Tribunal indicates that the Vinh Duc Buddhist Association is an incorporated entity registered with the Australian Charities and Not for Profits Commission. The Association has a current ABN number 97 406 947 673.
Based on the evidence before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia.
Accordingly, the Tribunal finds the requirements in r.5.19(4)(b) are met.
Position is not labour-hire: r.5.19(4)(c)
The evidence before the Tribunal does not suggest the applicant is involved in labour hire activities.
Accordingly, the Tribunal finds the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has had regard to the financial statements of the applicant provided at review. Those figures establish the asset position of the Association and the ability of the Association to meet its financial obligations to the nominee.
The Tribunal has had regard to the employment contract provided to the Department. Therein it provides the contractual conditions pertaining to the position of Buddhist Monk.
Accordingly, the Tribunal finds the requirements in r.5.19(4)(d) are met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(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 applicant provided limited evidence in relation to this issue. The Tribunal notes the terms and conditions of employment in the employment contract appear to be in accordance with the National Employment Standards in the Fair Work Act 2009. Having regard to that evidence, the Tribunal is, for the purpose of this decision, willing to accept that the terms and conditions of employment for the nominated position of Minister of Religion would be no less favourable.
The Tribunal finds the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) 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 r.1.13A and 1.13B.
The evidence before the Tribunal does not suggest there is anything adverse known to the Department about the applicant. The Tribunal finds the requirements of r.5.19(4)(f) are met
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant 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.
The material before the Tribunal does not suggest any non-compliance by the applicant. The Tribunal finds the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either:
(h)(i)the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister and certain specified training benchmarks will be met; or
(h)(ii)the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation at the Australian and New Zealand Standard Classification of Occupations (“ANZCO”) skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.
Genuine need for the position
The discussion during the hearing related to requirements of this criterion and whether in the circumstances of the Association, it had a genuine need for an employee in the position of Buddhist Monk.
The employment contract provided to the Department lists the duties of the position of Buddhist Monk to include but not limited to the following:
·     preaching of Buddhist Scriptures
·     conducting meditation groups
·     conducting religious ceremonies
·     attending to those in need (hospital visits)
The Tribunal has had regard to the position description of Ministers of Religion set out in ANZSCO.
The Tribunal has considered the evidence before it as to what are the duties of the nominated position are. The employment contract contains duties consistent with the tasks listed in ANZSCO.
Accordingly, the requirements of r.5.19(4)(h) are met.
CONCLUSIONS
For the above reasons the Tribunal is satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream. Accordingly, the nomination of the position can be approved. Therefore, the Tribunal sets aside the decision under review.
DECISION
For these reasons the Tribunal is satisfied that the applicant meets the requirements of Regulation 5.19(4) for approval of the nomination of the position in Australia. The Tribunal accordingly approves the nomination.
John Cipolla
Senior Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2017] AATA 1990

25 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing