VINCENTIAN MISSIONARIES (Migration)

[2017] AATA 206

VINCENTIAN MISSIONARIES (Migration) [2017] AATA 206 (6 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  VINCENTIAN MISSIONARIES

CASE NUMBER:  1513074

DIBP REFERENCE(S):  BCC2015/966516

MEMBER:Catherine Carney-Orsborn

DATE:6 February 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 06 February 2017 at 3:14pm

CATCHWORDS

Migration – Nomination – Direct Entry Nomination stream – Religious organisation – Minister of Religion – Tasks meet ANZSCO description – Training benchmarks met

LEGISLATION

Migration Regulations 1994, rr 1.03, 5.19, IMMI 13/030

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 on 4 September 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).

2. The applicant applied for approval on 27 March 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because he did not consider the nominating employer to be a religious organisation as described by Regulation 1.03.

5. The applicant appeared before the Tribunal on 31 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Joby George the visa applicant and Mr Perera the applicant’s tax accountant.   

6. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

7. 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

1. 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.

2. The applicant provided evidence that it is registered as a charitable organisation with the Australian Charities and Not-For-Profit Commission and evidence that it is exempt from income tax. 

3. Accordingly, the requirement in r.5.19(4)(a) is met.

4. Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

5. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

6. The applicant’s registration certificate and financial documents, including recent view activity statements, financial reports, copies of bank statements, invoices, lease and contract for sale documents which indicate that the nominator is actively and lawfully operating a business in Australia and directly operates that business.  The evidence indicates that the applicant is a religious organisation.

7. Accordingly, the requirement in r.5.19(4)(b) is met.

Position is not labour-hire: r.5.19(4)(c)

1. Regulation 5.19(4)(c) applies to nominators’ whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator.

2. There is nothing before the Tribunal to indicate that the applicant is involved in hiring of labour to other unrelated businesses.

3. Accordingly, the requirement in r.5.19(4)(c) does not apply.

Term of employment of the visa holder: r.5.19(4)(d)

1. 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 extension of the employment.

2. The Tribunal received a copy of the most recent employment contract, dated 31 August 2016, which sets out the terms and conditions of employment and indicates that the nominee’s employment will be for a minimum of 2 years on a full-time basis. There is no express exclusion of an extension of appointment in the agreement.

3. Accordingly, the requirement in r.5.19(4)(d) is met.

No less favourable terms and condition of employment: r.5.19(4)(e)

1. 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.

2. The nominee’s salary is $41,000, which includes a taxable cash component and a non-taxable cash component, plus superannuation. The nominee is paid a cash stipend, which is based on the Vincentian Missionaries minimum clergy compensation, and cost of living adjustment set by the Council.  The nominee is provided with accommodation, food, insurance and a pension fund.

3. On the evidence, the Tribunal is satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. Accordingly, the requirements of r.5.19(4)(e) are met.

4. Accordingly the requirements of r.5.19(4)(e) are met.

No adverse information known to Immigration: r.5.19(4)(f)

1. 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 rr.1.13A and 1.13B. 

2. On the material before it, the Tribunal is satisfied that there is no adverse information known about the applicant or a person associated with the applicant within the meaning of r.2.57(2) or (3). 

3. Accordingly the requirements of r.5.19(4)(f) are met.

Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

1. 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.

2. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

3. Accordingly 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)

1. 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:

   ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 15/091, and certain specified training benchmarks will be met; or

   ·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 ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.

1. In this case, the position is located in Metropolitan Sydney. As the position is not located in regional Australia, the applicant does not meet one of the requirements of r.5.19(4)(h)(ii). The nomination must therefore meet the requirements of r.5.19(4)(h)(i) to be approved.

Tasks of the position

1. The Tribunal took evidence from the priest representing the organisation, the nominee and the tax accountant.  The Tribunal considered whether the tasks of the nominated position corresponded to the ANZSCO description of the duties of Minister of Religion, which are as follows:

   UNIT GROUP 2722 MINISTERS OF RELIGION

   MINISTERS OF RELIGION perform spiritual functions associated with beliefs and practices of religious faiths, and provide motivation, guidance and training in religious life for the people of congregations and parishes, and the wider community.

   Indicative Skill Level:

   In Australia and New Zealand:

   Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. The occupation in this unit group requires high levels of personal commitment and interest as well as, or in place of, formal qualifications or experience (ANZSCO Skill Level 1).

   Registration or licensing may be required.

   Tasks Include:

   preparing and conducting services of public worship and acknowledgments of faith,

   preparing and delivering sermons, homilies and special talks, and planning music for services,

   participating in the social and welfare activities of communities, encouraging people to be aware of their responsibilities, and organising participation in community projects,

   conducting classes of religious instruction, and supervising prayer and discussion groups, retreats and seminars,

   conducting premarital and family counselling and referring people to professional service agencies where necessary,

   performing marriages, funerals and special memorial services according to tradition and ecclesiastical and civil law,

   visiting members of the community in their homes, hospitals and other institutions to provide advice and religious comfort,

   keeping records as required by the church and civil law

   Occupation:

   272211 Minister of Religion

   272211 MINISTER OF RELIGION

   Performs spiritual functions associated with beliefs and practices of a religious faith, and provides motivation, guidance and training in religious life for the people of a congregation or parish, and the wider community. This occupation requires high levels of personal commitment and interest as well as, or in place of, formal qualifications or experience. Registration or licensing may be required.

   Skill Level: 1

2. The Tribunal notes that the information provided to the Department about the role was quite brief and failed to explain how the responsibilities and duties to be performed by the Minister correspond to the tasks of the nominated occupation as set out in the ANZSCO.

3. On review, the Tribunal received considerably more information than what was before the delegate and had the benefit of considering the detailed oral evidence provided by the applicant’s representative, the nominee and the tax accountant.   

4. Mr /Father Payyapilly gave evidence about the mission of the organisation, its background and the work it is undertaking in Australia and in India.  This evidence was tested by the Tribunal against the documentary evidence on the file and the independent oral evidence given by the nominee and the organisations tax accountant. 

5. The Tribunal found the evidence to be consistent and credible.  The evidence is corroborated by documentary evidence on the file and the internet.  The tribunal accepts that the organisation has the support of the Diocese of Broken Bay.  Documents on the file indicate that they have provided substantial support. 

6. The duties as outlined by the applicant and the nominee accord with the duties as set out above in ANSZCO. 

7. The Tribunal accepts that the organisation is growing and is organising religious and spiritual activities for larger numbers of people.  The Tribunal accepts that the religious organisation needs a further priest to attend to the spiritual needs of its adherents. 

8. The applicant and nominee supplied the originals of the nominee’s educational achievements.  The nominee has a Bachelor degree of Philosophy, Bachelor of Arts from Bangalore University and a Degree of Master of Arts in Christian studies from University of Madras.

9. Having carefully considered the documentary and oral evidence before it, the Tribunal was satisfied that the position involves preparing and conducting religious services and retreats for the adherents. conducting talks and leading worship services at retreats, preparing the  ministry curriculum in accordance with the Vincentian Missionaries doctrine, conducting and leading prayer meetings, providing guidance and training to families, organising and overseeing community and family activities, providing counselling to families, and maintaining records in accordance with the Vincentians Missionaries requirements. 

10. The Tribunal finds that the position involves primarily religious duties that are consistent with, and correspond to, the tasks and at the level described in the ANZSCO for the occupation of Minister of Religion.

11. The Tribunal is satisfied on the totality of the evidence, that the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation that is specified by the Minister in the relevant instrument.

Training Benchmarks

1. The Tribunal has also considered whether the applicant meets the training requirements set out in IMMI 13/030.  As the applicant has operated for at least 12 months, it must meet the training requirements for the training of Australian citizens and permanent residents that are specified by the Minister in the relevant instrument (IMMI 13/030) as follows:

   Training Benchmark A – recent expenditure, by the business, to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or

   Training Benchmark B - recent expenditure, by the business, to the equivalent of at least 1% of payroll of the business, in the provision of training to employees of the business.

2. The applicant’s representative gave evidence that the organisation provides training to its priests.  The Tribunal also has the employment agreements, which indicate that two weeks a year is provided for training purposes.

3. Independent receipts and accounts from training bodies were provided to the Tribunal.  Those show that from January 2016 to September 2016 $4,435.00 was paid by the applicant for training to John Paul II Institute and $1000 to Sydney Institute TAFE an appropriate organisation that provides training.

4. Payroll summary for July 2016 to January 2017 indicates that the payroll of the applicant is $21,991.62. 

5. The applicant provided various receipts and invoices demonstrating expenditure on training that can count towards benchmarks A and B. The Tribunal is satisfied based on that evidence that the applicant has demonstrated recent expenditure in payments allocated to an industry training fund that operates in the same industry and meets training benchmark A.

6. Given the above, the Tribunal finds that the applicant meets the requirements of r.5.19(4)(h)(i).

7. Accordingly the requirements of r.5.19(4)(h) are met.

8. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Catherine Carney-Orsborn
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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;

   (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;

   (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).