1410313 (Migration)
[2016] AATA 3191
•8 February 2016
1410313 (Migration) [2016] AATA 3191 (8 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Bora Khuon
CASE NUMBER: 1410313
DIBP REFERENCE(S): CLF2014/88616
MEMBER:Mary-Ann Cooper
DATE:8 February 2016
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Temporary Work (Long Stay Activity) (Class GB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 401 Temporary Work (Long Stay Activity) visa:
·cl.401.214 of Schedule 2 to the Regulations.
Statement made on 08 February 2016 at 12:05pm
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 28 May 2014 to refuse to grant the visa applicant a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 14 March 2014. At the time of application, Class GB contained one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).
The criteria for a Subclass 401 visa are set out in Part 401 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of the four alternative visa streams: the Exchange stream, the Sport stream, the Religious Worker stream, or the Domestic Worker (Executive) stream. The Domestic Worker (Executive) stream is only available for visa applications made on or after 23 March 2013.
In the present case, the applicant is seeking the visa in the Religious Worker stream to work for the Cambodian Buddhist Association of Victoria, Inc. (CBAV). This stream provides for the temporary entry of persons who will be full-time religious workers in Australia. The delegate refused to grant the visa because the applicant did not meet cl.401.214 of Schedule 2 to the Regulations because, having considered his migration history, the delegate was not satisfied the applicant genuinely intended to stay temporarily in Australia.
The applicant appeared before the Tribunal on 20 August 2015 to give evidence and present arguments. By consent, and as a matter of efficiency, the matter was heard jointly with that of another review applicant in identical circumstances to that of the applicant (MRT 1410316). The Tribunal also received oral evidence from a fellow monk and the advisor and former secretary to CBAV. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets cl.401.214. The applicant’s representative sought that the Tribunal also address Schedule 3 issues that arise with the application. For reasons below (paragraph 22) the Tribunal has declined to do so.
Genuine temporary stay
Clause 401.214, a common visa criterion, requires that an applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, having regard to:
·whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held was subject;
·whether the applicant intends to comply with the conditions to which the Subclass 401 visa would be subject; and
·any other relevant matter.
Clause 401.611 of Schedule 2 to the regulations provides that conditions 8107, 8303 and 8502 must be imposed on the visa. In summary they require that the visa holder must not cease to be engaged in the most recently nominated occupation, activity or program; must not become involved in violent or disruptive activities; and must maintain adequate health insurance.
As recorded in the delegate’s decision, a copy of which was provided with the review application, the applicant first arrived in Australia on a subclass 428 visa in Religious Worker stream on 30 November 2008, and with the exception of 25 days, has been in Australia throughout that period. The delegate also noted that an application had been made for a subclass 186, permanent visa and, based on this and the applicant’s immigration history, was not satisfied that he had a genuine intention to remain in Australia temporarily. Consequently the delegate refused the application.
Prior to the hearing the Tribunal received submissions from the applicant’s representatives as well as the following documents:
· Notification of approval of nominations for subclass 186 and 401 visas for the applicant.
· Composition of the CBAV Management Committee.
· List of tasks performed by Buddhist monks and their daily duty sheet.
· Calendar of religious events and statement regarding Buddhist monks’ involvement in Ceremonies of Significance for Cambodians in Melbourne.
· Statement of support from a local councillor.
· Statutory declaration from the former Secretary of CBAV outlining and explaining the circumstances of the various visa applications.
Just prior to the hearing the Tribunal also received two statutory declarations. One from a fellow monk and the other from the above advisor and former secretary to the CBAV.
In his declaration, the fellow monk outlined the purpose for nominating the applicant ( and the applicant in matter 1410316) for this visa. He states that the aim was to secure their services for another 24 months as there were a number of religious events scheduled. He said the applicants’ presence was necessary to enable the ongoing conduct of religious, spiritual and educational activities at the temple. He further stated that there are currently 8 monks, four of whom, including the visa applicants, are fundamental to the association’s ability to perform its everyday activities. It is further stated that the other monks often travel and the presence of the visa applicants enables them to do so and to fulfil their other responsibilities. The declarant lists the various ceremonies and outlines the support provided by the monks to the sick and aged. He states that if the applicants’ applications are unsuccessful they will depart Australia but CBAV would hope to bring them back as they are a reliable and dedicated monks, compassionate in their relationships with people, relate well and are hard working.
In his declaration, the adviser acknowledged that the CBAV had hoped to sponsor both applicants for subclass 186 visas but had inadvertently made a mistake in the lodgement processes. He claimed that he acted on the Department’s advice in making these subclass 401 visa applications, given the CBAV’s immediate and pressing need to retain the services of the applicants to undertake fundamental work while the new, larger, temple was constructed and to perform services in the new building. He explained that it was difficult to recruit monks in Australia and so the association regularly recruits 2 or 3 monks overseas every year for a short stay which enables the other monks to participate in their 3 month retreat. He stated that the association needs extra monks to service the local community, and to travel to hospitals and homes, undertaking counselling and associated work. He said the CBAV will struggle to maintain its services without the visa applicants. He acknowledged that the association may seek to again sponsor the applicants for a permanent visa.
At the hearing the applicant confirmed that he had arrived in Australia in November 2008 on a Religious Worker visa. He further confirmed that he had sought two extensions to that visa. He said the purpose of his travel and residence in Australia was to serve the community.
The Tribunal asked him about his compliance with his previous substantive visa’s conditions and his intentions with regard to this visa. He responded that he had continued to be engaged by CBAV throughout his time in Australia and intended to remain with them (condition 8107). He also confirmed that he had not been involved in any disruptive activities or violence in Australia and did not intend to become so involved (condition 8501). He further claimed that he had at all relevant times been covered by health insurance and would remain so (condition 8501). In relation to condition 8101, which had been imposed on his bridging visa, he confirmed that he had not been relevantly employed.
The Tribunal asked the applicant about his work at the temple. He stated that he writes reports, makes phone calls, teaches students, studies English if there is time, participates in the radio broadcast on Sundays, and does some cleaning. He stated that there were 8 monks at the temple but this was not enough to do all the work. He said there were only 3 young monks. The Tribunal asked about the new temple which had been built and why it was considered particularly necessary for him to be in Australia for its opening. He responded that this was because he was organising a 3-day celebration for its opening. He agreed that the opening of the new, larger temple would result in more work being required at the temple.
When asked the purpose of this application, he said it was to continue to serve the community, and his stay depended on how long the community required him. The Tribunal asked him about his application for a permanent visa, and he responded that this was a community decision. It was clear from his responses that he is a dedicated monk and the Tribunal accepts that his responses in this regard were genuine and that he regards himself as beholden to others in respect of his stay in Australia however it found it difficult to elicit direct responses from him. Following a request from the applicant’s representative, the Tribunal asked the applicant directly, if this visa was granted, if he did not have another visa at its expiry, whether he would depart Australia. The applicant responded in the affirmative.
The Tribunal also took evidence from a fellow monk at the temple who is an Australian permanent resident and who had provided the statutory declaration summarised above. He largely confirmed the content of that statutory declaration but also elaborated on the engagement of the monks in the local and broader community and the intensity and significant size of their workload. He also explained why some of the monks must travel overseas and that the presence of the applicant ensures that the temple’s work can continue while this occurs. He said the applicant (and the related applicant) are reliable and dedicated men who relate well to the community and the Management Committee would like them to remain. He said their youth and knowledge of such things as setting up microphones and other technical equipment was necessary to the temple’s operations and their capacity was needed at the temple because the other monks were ageing. He accepted that they may be required to depart Australia but confirmed that CBAV would hope to bring them back.
The Tribunal also spoke to the adviser to CBAV, whose statutory declaration is summarised above, and who has previously assisted the organisation with migration matters. He said he knew the visa applicant well, having been involved in his original visa application in or around 2006-7. He said that in later 2013 (around the time the applicant’s Religious Worker visa was due to expire) the CBAV had lodged applications to sponsor him and the other applicant for permanent, subclass 186, visas however a mistake had been made insofar as it had been thought that the lodgement of the nomination application would result in the automatic issue of Bridging Visas to the applicants. This was not the case and unfortunately the applicants’ status became unlawful when their visas expired. The Tribunal asked why applications had been made for these 401 visas. He responded that this was the path they had been advised to follow by the Departmental officer, who advised them to lodge subclass 401 visa applications in the event their permanent applications were unsuccessful. He said the organisation had sponsored several monks on short stay visas and most of them depart Australia however the community is growing and has only 8 monks to service it and there is a pressing need to retain the services of the applicants. He also claimed the other monks were getting older and there was a need for younger, fitter monks to undertake some of the heavier workloads. He acknowledged that the community wished to pursue its original purpose to have the applicants remain permanently but that, in the event that they are not successful in gaining permanent visas, they will depart in compliance with this temporary visa if granted.
At the close of the hearing the applicant’s representative observed that the Tribunal did not seem to have raised various Schedule 3-related matters. The representative submitted that the Tribunal’s questions had not elicited the relevant information and could have been better targeted. The Tribunal responded that the delegate’s decision considered cl.401.214 and not Schedule 3 and, in light of the apparent lack of any specific knowledge by the applicant as to the circumstances surrounding his visa applications, and the difficulty the Tribunal had in eliciting direct responses from him, it would be inappropriate to make such findings. The Tribunal however allowed the applicant one week to provide any further material in relation to Schedule 3. It further advised that if it considered it necessary it would convene a further hearing. Having considered that material the Tribunal remains of the view, consistently with the President’s policy direction[1], that the Tribunal’s decision should be confined to the criteria directly addressed by the delegate. In that context a further hearing was not considered necessary.
[1] Paragraph 8.2 of President’s Direction. Conducting Migration and Refugee Reviews. 1 July 2015
The issue in this case is whether the visa applicant meets clause 401.214 of Schedule 2 to the Regulations.
In considering whether the visa applicant satisfies clause 401.214, the Tribunal had regard to, but acknowledges it is not bound by, the Department’s policy guidance as set out in the Procedures Advice Manual (PAM3). In respect of clause 401.214 PAM3 relevantly states:
26 Genuine applicant
26.1 Background
Clause 401.214 requires that the applicantnot genuinely intends to stay in Australia temporarily to carry out the activity for which the visa is granted, having regard to:
- whether the applicant has complied substantially with the conditions of the last substantive visa or any subsequent bridging visa
- whether the applicant intends to comply with conditions subject to which the visa is granted and
- any other relevant matter.
26.2 Temporary stay
In deciding whether an applicant genuinely intends a temporary stay in Australia, officers should consider whether the applicant is attempting to circumvent proper migration channels and use the GB-401 visa to maintain an ongoing residence in Australia. This is particularly relevant when assessing an application for further stay in Australia by:
- an applicant who already holds GB-401 visa or
- an applicant who holds or has recently held one or more other temporary visas, as either a primary or secondary applicant.
It is not the intention that a visa holder remains on a GB-401 visa for an extended period of time. If the grant of a GB-401 visa would result in an applicant exceeding four years stay in Australia then the grant should allow the holder only enough time to finalise their assignment in Australia and depart, or allow only enough time for them to apply for a another visa subclass if they are eligible and state their intention to do so.
There is room for discretion when considering previous periods of stay in Australia that are not recent, for example, an applicant who five years previously had studied for a year in Australia should not have this prior stay considered against a GB-401 visa application.
If condition 8503 has been attached to a GB-401 visa and:
in considering whether the applicant meets the genuine temporary entrant criterion, officers at post should take into account:
For more guidance on condition 8503 and GB-401 visa grants, see section 42.2 GB-401 and “no further stay” condition 8503.- the applicant subsequently leaves Australia and applies for another GB-401 visa or
- an application is made outside Australia by an applicant who has had previous temporary visas
- the number of previous visas granted (GB-401 and other visas) and
- the total amount of time spent in recent years residing in Australia as a temporary visa holder which should not exceed four years if the application on hand is granted.
26.3 Substantial compliance
Clause 401.214(a) requires that the visa applicant must have complied substantially with the conditions that apply or applied to the last of any substantive visa held by the applicant, and to any subsequent bridging visa.
For policy and procedure, see PAM3: Sch8 - Visa conditions - About visa conditions - Substantial compliance with visa conditions.
26.4 Intention to comply
Clause 401.214(b) requires consideration of whether the applicant intends to comply with any conditions subject to which the GB-401 visa is granted. In assessing this criterion, officers should have regard to which (and the circumstances in which) conditions are attached to GB-401 visas.
For policy and procedure on assessing an “intention to comply”, see PAM3: Sch8 - Visa conditions - About visa conditions - Substantial compliance with visa conditions.
atter26.5 Any other relevant m
Officers can consider any other information that they consider is relevant to the applicant’s genuine intention to stay temporarily. This includes information that may be either beneficial or unfavourable to the applicant, such as:
- the applicant’s circumstances in their home country. This may include their personal circumstances such as their current employment, family situation, future prospects, and general circumstances of their country, civil unrest, economic strife, famine
- whether the position has been created to secure the person’s stay in Australia. Officers should assess whether family members, the applicant’s community etc. have created the position to fit the attributes of the particular person
- the personal attributes and employment background of the applicant and their ability to undertake the nominated position. Factors to consider are the applicant’s current occupation, current skill level and whether they have undertaken the same or similar work in Australia or overseas
- the applicant’s proficiency in English is consistent with the nominated employment (although applicants are not required to undertake English language testing, however if they are to work in Australia that at least a rudimentary knowledge of English should be expected).
Further consideration should be given to the applicant’s intentions if it appears the applicant’s qualifications/competencies or employment background is significantly inconsistent with the nominated occupation For example, if an applicant who has no history with a religious institution is nominated for a position which is ill-defined, or an applicant with very little or no previous work experience is nominated to a specialist position.
It is also relevant to consider whether the applicant is required to hold a specific licence to undertake the nominated role in Australia. For example, a sport person or team of sportspersons entered to compete in a sporting event, or series of events in Australia, may wish to engage the services of a bodyguard under the Sport stream. However, acting as a bodyguard, providing close personal protection, or acting in a similar capacity without the appropriate licensing may be illegal in some states/territories and may result in substantial fines and/or jail terms. Officers should be alert to any cases that potentially fall within this scope. Refusal may be appropriate under this clause if it appears that an applicant may be in breach of state/territory laws. See Support staff of competitors for further information about body guards.
If officers have doubts about the applicant’s qualifications/competencies or employment background and the nomination has not been finalised then consideration should be given to seek further advice from the sponsor and may result in a refusal decision.
As previously noted, the Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.[2] To the extent that policy is inconsistent with the Regulations, the Tribunal is required to depart from it. The Tribunal has taken into account the individual circumstances of the applicant and it sees no reason to depart from policy in the individual circumstances of this application.
Whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held was subject
[2] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
The oral and documentary evidence confirms that the applicant has continued to be engaged in his most recently nominated activity of a religious worker, has not been involved any violent or disruptive activities and has maintained adequate health insurance.
On this basis the Tribunal is satisfied that the requirements of cl.401.214(a) are met.
Whether the applicant intends to comply with the conditions to which the Subclass 401 visa would be subject; and
The Tribunal found the applicant to be an honest and credible witness and accepts his stated intention to comply with the relevant conditions. There is no evidence before the Tribunal to suggest the contrary.
On this basis the Tribunal is satisfied that cl.401.214(b) is met.
Any other relevant matter
The policy guidelines noted above provide that, in determining whether an applicant genuinely intends a temporary stay in Australia, officers should consider whether he or she is attempting to circumvent proper migration channels and use this visa to maintain ongoing residency.
Notwithstanding the applicant’s application for a permanent visa, the Tribunal does not consider that this application was an attempt to circumvent appropriate migration channels. In this context the Tribunal accepts the consistent evidence that this path was in fact suggested by a Departmental officer. As noted in the submissions, this is also alluded to in the delegate’s decision. In this context the Tribunal accepts the submission of the applicant’s representative that, far from seeking to circumvent proper migration channels, the applicant was seeking to follow them. The Tribunal also notes that the Departmental policy guidelines specifically contemplate an application for another visa while an applicant on a subclass 401 visa, even where the applicant has been in Australia for an extended period (see Tribunal’s emphasis at paragraph 26.2 of the policy guidelines above).
In addition, as addressed in the submissions provided, the delegate’s decision, that the applicant did not have a genuine intention to stay temporarily in Australia, appears to have been influenced by the fact of his attempt to lodge an application for a subclass 186 permanent residence visa. In this context reliance is placed on the decision in Saravanan [2002] FCA 348 at 37-42 where Drummond J stated, in relation to an applicant for a tourist visa who acknowledged the purpose for his stay in Australia was to apply onshore for a business visa, not for tourism purposes, as follows:
39. It is not to the point that the respondent intended to use the attainment of a Tourist (Short Stay) visa as a stepping stone to an application for a Business (Long Stay) visa. In my view the primary judge was correct when he observed that the term "purpose" in cl 676.211(a) refers to "what the visa applicant proposes to do during the period for which the visa is to be granted". The respondent's longer term purpose of conducting a business in Australia is therefore beyond the reach of "the purpose" to which cl 676.211 is directed.
While acknowledging the relevance of this decision when considering the applicant’s purpose in applying for the visa, the issue before the Tribunal is not whether he genuinely intends to stay temporarily in Australia for that purpose, that is, to carry out the occupation or activity for which the visa is granted. The Tribunal has no doubt, on the evidence before it, that the applicant intends to stay in Australia to carry out the relevant activity. The issue is whether, given the attempted application for the permanent visa, he genuinely intends to stay temporarily.
Later submissions were received advocating the adoption of the reasoning in Khanna v MIBP [2015] FCCA 1971 and stating that it was directly on point and relevant to the case. Given later authorities declining to follow this decision (Saini v MIBP [2015] FCCA 2379 and Singh v MIBP [2015] FCCA 2451), the Tribunal invited further submissions in this regard. The applicant’s representative responded, contending that, on the basis of the contradictory state of the authorities, the decisions should be confined to consideration of student cases and are distinguishable from this visa stream. Given the current policy guidelines in respect of subclass 401 visa applications as discussed above, which specifically contemplate further visa applications where an applicant has been in Australia for even a lengthy period on a subclass 401 visa, and the unsatisfactory state of the authorities in relation to a similarly worded phrase in the student stream, the Tribunal accepts the submissions of the representative that these decisions should not be relied on its consideration of the circumstances of this particular application.
While it could be said that the visa applicant had demonstrated an intention to remain permanently in Australia on the basis of his application for an Employer Nomination Scheme (subclass 186) visa, the Tribunal does not consider that the fact of that attempted application alone demonstrates that the applicant does not genuinely intend to stay temporarily in Australia to carry out Religious worker activities. It is clear from the evidence that the applicant’s only intention is to follow the wishes of his community in respect of his stay in Australia, subject to Australian law. It is also clear from his oral evidence that when this visa expires he intends to depart Australia. On this basis the Tribunal is satisfied, at the time of its decision, that the applicant genuinely intends to stay temporarily in Australia to carry out his religious work.
In relation to the other “relevant matters” addressed in the policy guidelines, given the applicant’s accepted evidence concerning his deference to his community’s needs, the Tribunal accepts that the situation in his home country is not a motivating factor for him in decisions about where he resides. The Tribunal is also satisfied on the basis of the oral and documentary evidence that there is a genuine need for the applicant’s skills and experience in his community and that the position has not been created to secure his stay in Australia. Similarly the evidence regarding his personal attributes and background confirm his dedication and highly effective conduct in his role as a Religious Worker. While his English language proficiency is significantly limited, given his role is to assist the local Cambodian community, in that context it is of a level consistent with the nominated position.
Having regard to all of the evidence before it, noting the applicant’s substantial compliance with his previous conditions, its acceptance that he intends to comply with the conditions to which the Subclass 401 visa would be subject, and all other relevant matters, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia to carry out the occupation of Religious Worker.
CONCLUSION
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Temporary Work (Long Stay Activity) (Class GB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 401 Temporary Work (Long Stay Activity) visa:
·cl.401.214 of Schedule 2 to the Regulations
Mary-Ann Cooper
Member
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