ZONGDE BUDDHIST TEMPLE AUSTRALIA (Migration)

[2017] AATA 703

ZONGDE BUDDHIST TEMPLE AUSTRALIA (Migration) [2017] AATA 703 (2 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ZONGDE BUDDHIST TEMPLE AUSTRALIA

CASE NUMBER:  1515898

DIBP REFERENCE(S):  BCC2015/1859482

MEMBER:Rania Skaros

DATE:2 May 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 02 May 2017 at 3:10pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Direct Entry nomination stream – Tasks match nominated occupation – Director and Administration Manager (Minister of Religion – 272211) – Not a paid employee – Tasks do not correspond to tasks of occupation

LEGISLATION

Migration Regulations 1994, r 5.19

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 11 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).

2. The applicant applied for approval on 29 June 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)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the tasks to be performed in the position correspond to the occupation of Minister of Religion. The delegate considered the position to be Religious Assistant, which is not an occupation at ANZSCO skill level 1, 2 or 3.

5. Mr Xiabo Hua, the applicant’s public officer, appeared before the Tribunal on 27 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The nomination was refused on the basis that the requirement in r.5.19(4)(h)(ii)(D) was not met. The Tribunal notes however that as the position and business is not located in ‘regional Australia’, r.5.19(4)(h)(ii) is therefore not relevant in this case. The relevant issue however remains the same and the relevant paragraph is r.5.19(4)(h)(i)(A) and requires the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in the Instrument.

10. The issues in this case turned on whether the applicant meets the requirements in r.5.19(4)(a) and (h).

    Background evidence

11. The Zongde Buddhist Temple (the Temple) applied for approval of a position of Director and Administration Manager (Minister of Religion – 272211). A number of supporting documents were provided with the application, including the organisation’s registration certificate, ATO endorsement for charity tax concessions, financial reports for the Temple, an organisational chart, background information about the activities of the Temple, photographs of the Temple’s members, employment contract for the nominee, meeting minutes dated 11 October 2014 regarding the appointment of the nominee to the position of Director and Administration Manager and information about the background of the nominee.

12. On review, the Tribunal requested current information regarding the nomination. In response, the applicant provided a number of documents, some of which had already been provided to the Department. In addition, the Tribunal received the 2015 financial reports, evidence of the sale of the Temple premises at Ashfield in December 2016, insurance documents, copy of local council resolution and a Certificate of IkuanDao Lecturer and work experience document for the nominee.

13. At the hearing, the Tribunal had the opportunity to take evidence from Mr Hua about the activities of the Temple and the tasks of the nominated position. Mr Hua informed the Tribunal that the Temple’s activities are currently being conducted temporarily from a residential property at Auburn as the Temple had to sell its premises in Ashfield due to the widening of Parramatta Road. The nominee’s father, who is one of the senior lecturers of the Temple, owns the property at Auburn. Mr Hua explained that the Temple also uses other sites, including at Lidcombe and the Central Coast. 

14. Mr Hua gave evidence that the Temple conducts regular services every weekend, including morning sessions and afternoon sessions. The nominee’s father heads the services at Mona St. Some of the services include worshipping and honouring the saints by tea, reading scriptures and conducting lectures. On Sundays, the services are from 10:00 am to 1:00 pm, during which they conduct classes so people can talk about the faith and the thoughts of Buddhism. Classes are also conducted on Saturdays, including for the younger generation and kids, during which they read the scriptures and undertake activities based on the needs of the followers on the day.

15. Mr Hua gave evidence that the nominee currently works as a volunteer for the Temple and that he conducts some of the lectures. When asked about the nominee’s role and what it involves, he stated that he handles the daily tasks of the Temple, he burns in sense, reads the scripture, organises people do the scripture readings, organises teachers for the lectures and organises the whole procedure of giving lessons. During the week, he also has a number of other duties, including meeting and talking with new people who come to the Temple.

16. Mr Hua gave evidence that the Temple has about 2000 members. The Temple has 40 people who were ordained as lecturers and can deliver lectures or lessons to the attendees. The Temple is a non-profit association and all the work undertaken for the Temple is done on a volunteer basis. Mr Hua gave evidence that the nominee’s father is one of the established lecturers and masters of the Temple. The nominee handles much of the internal work. They chose the nominee to be the Director because he comes from a family that observes the religion, is an honest person, has a good heart and has a business background so can help the Temple with its development and negotiate on its behalf. He stated that the nominee conducts lectures, between about 8 to 10 times a year and is responsible for allocating the different topics to the different lecturers.

17. Mr Hua gave evidence that the nominee would not be paid because, like everyone at the Temple, he is a volunteer and temples all over the world do not pay their volunteers as this would be against their principles. He stated that the nominee’s expenses are however covered.

18. The Tribunal explained to Mr Hua that one of the requirements for the nomination is that there is a need for the Temple to employ a paid employee to work in the position. It explained that the requirements suggest that the position must be a paid one and that the work cannot be undertaken on a volunteer basis. Mr Hua stated that the Temple does not give money to people for their personal lives. He stated that they asked the nominee to migrate for the needs of the Temple. He stated that the theology of the Temple is for people to cultivate themselves and be responsible for their lives. The Tribunal again explained to Mr Hua that the position is required to be a paid one. Mr Hua stated that in relation to Buddhists, the guidelines do not have such regulations.

19. The Tribunal also discussed with Mr Hua its concerns relating to the tasks of the position. The Tribunal noted that the tasks of the position do not appear to correspond with the tasks for occupation of Minister of religion as described in the ANZSCO, and that it appeared to be more of an administrative coordinator and support type role. Mr Hua stated that there Temple has been established in Australia for 17 years and they are still trying to make it perfect. They require a person who can multitask. He stated that their human resources and financial resources are a bit weak but they are trying to develop and that there were many tasks that needed to be arranged.

20. The representative submitted that in relation to the requirement that it be a paid employee, the Temple would provide the nominee free accommodation and meals and that this should be considered. She also noted that the nominee’s father had been granted the same type of visa by the Department under the same conditions.

21. The representative also submitted to the Tribunal that on her understanding from discussions with Mr Hua, the nominee is an admitted lecturer who also trains and instructs the young people of the Temple. She stated that the split of the nominee’s tasks is 80% religious work and 20% as a Director.

22. The Tribunal has considered the evidence before it as follows.

    The application is compliant and need for paid employee: r.5.19(4)(a)

23. 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.

24. The Tribunal is satisfied that the application for approval was made in accordance with the prescribed requirements. However, the Tribunal is not satisfied that the nomination identifies a need to employ a ‘paid employee to’ work in the position, because the evidence provided indicates that the position is a volunteer one that does not attract a wage or salary.

25. The contract of employment indicates that the nominee’s remuneration will cover travel costs, insurance, accommodation, food and other living expenses. It states that the nominee agrees to work voluntarily for the Temple without any other payment.

26. At the hearing, Mr Hua confirmed that the nominee, like all of the other volunteers at the Temple, would not be paid a salary or wage as this would inconsistent with the principles of Buddhism. The Tribunal acknowledges the reasons for why the position does not attract a salary or wage but is of the view that the regulations require the need to be in respect of a ‘paid employee’ to work in the position.

27. The Tribunal has considered the submissions made that the nominator will cover the nominee’s living expenses, including meals and accommodation and that the nominee’s father had been granted the same type of visa under the same conditions.

28. The Tribunal accepts that the nominator may have previously had a position under the employer nomination scheme approved by the Department where the same conditions of employment as those noted in this application were provided. The Tribunal also acknowledges that Departmental policy, prior to July 2015, indicated that the requirement for market salary could be met if the religious organisation provides the nominee with all of their living needs, including board and lodging, and would meet all of the nominee’s health, education, welfare and other costs incurred by the nominee, directly from the nominator’s own funds, in a package that could be equated to the minimum salary in Australia. 

29. The Tribunal however does not consider the policy to be consistent with the wording in r.5.19(4)(a) in the context of requirements in r.5.19(4) for approval of a position under the employer nomination scheme.

30. The Oxford English Dictionary defines ‘employee’ as ‘a person who works for an employer; spec. a person employed for wages or a salary under an employment contract’ and ‘paid’ as ‘remunerated or recompensed with money; in receipt of pay’. On these definitions, the Tribunal considers that the position in which the nominee is to work must be remunerated with money, by way of wages or a salary, under an employment contract. In this case, the nominator is offering to cover the nominee’s living expenses, including food and accommodation, but will not be making any wage or salary payments. The Tribunal considers that the need is for the nominator to employ a volunteer person and not a paid employee to work in the position.

31. Given the above, the Tribunal is not satisfied that the application identifies a need to employ a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement in r.5.19(4)(a) is not met.

    Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)

32. 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 in the instrument and certain specified training benchmarks will be met or the position and nominator’s business is located in regional Australia and other requirements are met.

33. As the position is not located in regional Australia, the applicant must meet r.5.19(4)(h)(i).

34. The Tribunal has considered the evidence provided in respect of the tasks to be performed in the position of Director and Administration Manager so as to determine whether they correspond to the tasks for the occupation of Minister of Religion as described in the ANZSCO.

35. The Tasks for Ministers of Religion, which is a skill level 1 occupation, include preparing and conducting services of public worship, preparing and delivering sermons, homilies and special talks, participating in social and welfare activities of communities, conducting classes of religious instruction and supervising prayer, conducting premarital and family counselling, performing marriages, funerals and special memorial services according to tradition and relevant law, visiting members of the community and keeping records as required.

36. The tasks set out in the position description provided with the nomination indicated that the tasks of the position included the following; Presenting Buddhist, Confucius and Tao lectures during Temple events. Providing inductions, training and support for lecturers, Temple managers and Temple volunteers. Organising seminars and lecture series throughout the year and motivating others to assist with these events. Instructing members, communicating with headquarters and keeping records of Temple events. Negotiating between individual temples on paperwork, expenditure and staff duties, before and after each religious or community event. Instructing and supporting members during scripture learning sessions and children’s chanting classes. Persuading visitors to join the Temple and become members, and maintain order, tidiness and propriety within the Temple including during routine rituals.

37. The meeting minutes dated 11 October 2014 which details the appointment of the nominee in the position of Director and Administration Manager indicates that the nominee will be responsible for relaying instructions from Taiwan headquarters to local lecturers, Temple managers and volunteers and provide training and support for local staff. It also referred to an upcoming seminar in which the nominee was noted as its coordinator responsible for ensuring that the jobs for preparation and carrying out will be distributed evenly amongst all Buddhist/Confucius associations

38. The daily schedule for the position was also provided and shows that the day includes meditation, incense offering, administrative tasks such as emails and faxes, scripture study, online courses with the Tao centre in Taiwan and providing training classes.

39. Tribunal acknowledges that some of the duties in the position description align with the tasks of the occupation of Minister of Religion, including delivering talks and participating in social and welfare activities and community events and conducting religious classes. The Tribunal notes however that the Temple also has 40 other persons that are ordained as lecturers who deliver lectures and lessons for the Temple’s members. Mr Hua indicated that the applicant conducts lectures up to 10 times a year. Furthermore, the nominee’s father, who has previously been granted a visa as a Minister of Religion, as described by Mr Hua, is the senior person who heads the services at the Temple’s current location in Auburn. The Tribunal considers that many of the core tasks of the position of Director and Administration Manager, as noted in the description, the Minutes and as described by Mr Hua, do not correspond with the task for Minister of Religion. The position appears to be primarily responsible for the co-ordination and administration of the Temple’s activities, including organising volunteers and supporting the delivery of Temple’s religious services, and negotiating with external bodies on behalf of the Temple. The Tribunal formed the view that the core tasks of the position more closely correspond to those of Religious Assistant (451816) than that of Minister of Religion.

40. The Tribunal has considered the representative’s submission that 80% of the tasks of the position are religious in nature and that only 20% is administrative. The Tribunal acknowledges that many of the tasks are religious in nature, however it considers that they are being undertaken in the context of a support type role rather than at the senior level of Minister of Religion.

41. Having carefully considered the totality of evidence before it, the Tribunal is not satisfied that the tasks to be performed in the position correspond to the tasks of the occupation Minister of Religion or to any of the other occupations specified in the Instrument.

42. Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(i), are not met. The application therefore does not meet r.5.19(4)(h) as a whole.

43. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

44. The Tribunal affirms the decision under review to refuse the nomination.

    Rania Skaros
    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;

    (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).