1418266 (Migration)

[2015] AATA 3909

1418266 (Migration) [2015] AATA 3909 (21 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Xiaoling Qu

CASE NUMBER:  1418266

DIBP REFERENCE(S):  CLF2014/134186

MEMBER:D. Dimitriadis

DATE:21 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.

Statement made on 21 December 2015 at 10:11am

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 20 October 2014 to refuse to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 July 2014. At the time of application, Class GB contained one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).

3. 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.

4. In the present case, the applicant is seeking the visa in the Religious Worker stream. 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 her migration history, the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia.

5. The applicant appeared before the Tribunal on 9 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ilia Tslaf. The Tribunal was assisted at the hearing by an interpreter (on the telephone) in the Mandarin and English languages.           .

6. The applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant applied for the visa on 29 July 2014. Information in the file of the Department of Immigration (the Department) is that the sponsor is The Community Apostolic Order Inc.

9. The applicant provided to the Tribunal the delegate’s decision record which sets out her migration history. The applicant first arrived in Australia on 16 June 2010 as the holder of a Subclass 442 Occupational Trainee visa which expired on 1 June 2012. While in Australia, the applicant applied for and was granted a Subclass 428 Religious Worker visa which ceased on 31 July 2014. At the time of the delegate’s decision on 20 October 2014, the applicant had not departed Australia since 16 June 2010 and had been in Australia for over 4 years.  

10. The delegate stated that as part of this visa application, the applicant has requested a further stay on a Temporary Work (Long Stay Activity) Religious Worker stream (Subclass 401) visa for two years from the date of the visa grant. The delegate stated that the grant of a Subclass 401 visa to the applicant would result in her being allowed to stay in Australia for six years continuously as the holder of a series of temporary visas. The delegate did not accept that the applicant intended a temporary stay in Australia.

11. The applicant provided to the Tribunal a letter dated 6 November 2014 from Ilia Tslaf, Senior Deacon and Corporate Secretary of T.H.E. Community Apostolic Order Inc. Mr Tslaf stated that the Department disregarded their genuine need for the applicant as an employee and the delegate made a judgment as to the applicant’s genuine intention without considering her sincere commitment to her chosen field (religious work). The applicant’s previous periods of stay did not relate to the “Program”. The Department failed to advise the applicant of other options available. Mr Tslaf stated: “Without prejudice, we note that the rashness of the decision and the lack of communication suggest that the applicant may have been stereotyped as a ‘single Asian female’; however, she is a dedicated and qualified professional and a committed and inspired religious leader.”

12. Mr Tslaf stated that the Department’s judgement is a judgement of character, not fact. Mr Tslaf stated that the applicant has many years of dedicated, self-denying work in the field and she is highly qualified and has undergone rigorous study and training over the years. The applicant holds no possessions and receives no monetary reward for her pastoral and evangelistic work. The applicant is only attempting to stay in Australia to complete the work she started which, in their belief, offers enormous benefits, at no cost, to the members of the society. In applying for the visa, the applicant is responding to their need for her and not inventing another avenue to remain here. Ms Tslaf stated that the “rashness of that decision seems to point to subjectivity and bias.”

13. Mr Tslaf stated that the applicant joined them as a trainee and was then employed as a Religious Worker. They asked for her to stay for one more contractual term to complete her projects before departing. The applicant is using the program for the first time. The program was suggested to her by the Department in a telephone conversation before she applied. Mr Tslaf stated that the applicant made enquiries and was advised that a Subclass 401 visa would suit her.  Mr Tslaf further stated that “one may construe the officer’s approach as being influenced by a cultural stereotype.” Mr Tslaf claimed that the officer seemed to lack objectivity although they do not claim that the officer’s intention was to discriminate.

    The Tribunal hearing

14. The Tribunal informed the applicant that the reason she was refused a visa was because she did not meet cl.401.204 because the delegate was not satisfied that she genuinely intended to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted.

15. The applicant stated that she is a pastor and is involved in shepherding for the sponsor. The applicant confirmed that this was the third visa application for a temporary visa to be in Australia.

16. The applicant had not requested an interpreter. However, after taking some evidence from the applicant, the Tribunal considered that an interpreter should be available to assist the Tribunal. The Tribunal arranged to have a TIS (telephone interpreter service) interpreter to assist the Tribunal.

17. The Tribunal asked the applicant why it should accept that she intends to stay temporarily in Australia. The applicant stated that the sponsor asked her to stay. She plans to go back to China. The applicant stated that they have to find someone to take over as pastor. The sponsor would like her to stay in Australia so that they can develop the program because of her language capability. They need her here because there are lots of Chinese speaking people and she will teach them about God, how to read the Bible and to promote God. She needs to finish the project. She has been here for a long time and she needs to pass on to other people what she knows. In her previous application the applicant applied to stay for two years. Now she needs one year to continue the project. The applicant stated that they need her. She knows lots of people and she cannot just stop everything. It is not just a job. This is her life.

18. The applicant confirmed that she had been in Australia since June 2010. She has been here since that time to pass on the information to others. During the first two years, she was learning to be a pastor. The applicant’s pastor was mentoring her. She is a sincere believer. The sponsor is very experienced and makes the decision as to whether she is qualified or not. The applicant expects to be qualified as a pastor in two years. The sponsor needs her to spend time spreading the message.

19. The applicant stated that she has not left Australia since she arrived in June 2010. Her parents visited her here. If she focuses, she will return to China early. She will pass on what she knows. The applicant needs time to wrap up what she has been doing. She has to find someone to pass on what she knows to another person. She does not want to leave everything behind.

20. The applicant stated that she has found someone who speaks Chinese. The applicant stated that she is from Taiwan. Her English name is “March” (sic). The applicant did not know her full name. The applicant will hand over this information to her but it is still in progress and it is just the beginning. The applicant thinks that she is a suitable candidate. If they are not able to find a suitable candidate the sponsor will not just let her go because the applicant has handled many things.

21. The applicant stated that she just needs to find a suitable person and she maybe needs a year or half a year. The sponsor is very happy with “March” and found her very good. The applicant stated that there are over 20 pastors at the Church. There are about 50 members of the congregation or the Church. There are ten ministers or priests. The pastors are from different countries. They have lots of meetings. She is the only pastor from China.

22. The applicant has not undertaken an English language test in Australia or before she came to Australia. She underwent two years formal training at her Church to be a pastor. The sponsor has qualifications to train pastors. She did all her training in Australia.  

23. The applicant stated that she wants to go back to China which she loves. She wants to help people in China.

24. The applicant stated that she complied with the conditions of her previous visas and will comply with a visa if she is granted one. The applicant stated that she needs time to finish what she has been doing.

25. The Tribunal informed the applicant and Mr Tslaf of the sponsor that the sponsorship approval expired in May 2015 and the nomination will cease three months after the sponsorship ceases.

26. Mr Tslaf gave evidence that he is the secretary and deacon for the Church. They consider the applicant genuine and they have a genuine need for her to stay longer. Religious work is a life commitment. The applicant is involved in bringing people to God. It is not a job.

27. The Tribunal informed the applicant and Mr Tslaf that it has concerns that the applicant intends to remain indefinitely in Australia. Mr Tslaf stated that the applicant’s main desire is to establish a Church in China from what she has learned from the Church. The applicant wanted to go back and they asked her to a stay for a couple of years to pass things on to others. The applicant missed her family but agreed to stay longer.  The applicant is a dedicated religious worker. She took a vow of poverty in their Church. Mr Tslaf stated that within the next year, she will be able to pass thing on to others. The applicant knows a lot of people and a lot of people know her. They are not of English speaking background. It is not a regular job passing information like this to others. There are a lot of people who rely on the applicant for guidance.  It is a very sensitive matter passing this on to others.

28. Ms Tslaf confirmed that there are 20 pastors at the Church and there are about 50 members of the congregation of the Church. Mr Tslaf stated that the Church is connected with hundreds of people. It has existed in Australia for 20 years. The applicant knows a lot of people. They are struggling to find someone to replace her. They have to find someone who is Chinese speaking. It is a long process.  Mr Tslaf referred to his letter provided to the Tribunal at the time the application for review was lodged. The Tribunal informed the applicant that it has concerns about the allegations that he made in the letter.

29. The Tribunal informed the applicant that it has concerns as to whether she genuinely intends to stay in Australia temporarily. The applicant stated that she really wants to go back to China.

30. The issue in the present case is whether the applicant meets cl.401.214.

    Does the applicant meet cl.401.214?

31. Clause 401.214 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.

32. The Tribunal considers the applicant’s migration history to be a relevant matter. The applicant confirmed that she arrived in Australia in June 2010 and has not left Australia since that time.  The delegate’s decision record indicates that the applicant arrived in Australia on 16 June 2010 as the holder of a Subclass 442 Occupational Trainee visa which expired on 1 June 2012. While the applicant was in Australia, she applied for and was granted a Subclass 428 Religious Worker visa which ceased on 31 July 2014. The applicant applied for the visa the subject of this review on 29 July 2014.  At the time of the Tribunal’s hearing the applicant had not departed Australia for over five years since she arrived in Australia on 16 June 2010. 

33. The Tribunal indicated its concern at the hearing that it may not be satisfied that the applicant has a genuine intention to remain temporarily in Australia.  The applicant stated that her sponsor needs her here to pass on information to another person. She does not want to leave everything behind. The applicant stated that she thinks they have found a suitable candidate to pass into to. However, the applicant also stated that if they are not able to find a suitable candidate the sponsor will not just let her go because the applicant has handled many things. The applicant stated that there are over 20 pastors at the Church. There are about 50 members of the congregation or the Church. There are ten ministers or priests. The pastors are from different countries. They have lots of meetings. The applicant is the only pastor from China. She underwent formal training at her Church to be a pastor. She did all her training in Australia. 

34. The applicant stated that her sponsor is very experienced and makes the decision whether the applicant is qualified or not.  She expected to be qualified as a pastor in two years. The sponsor needs her to spend time spreading the message. 

35. Mr Tslaf stated that the applicant’s main desire is to establish a Church in China from what she has learned from the Church. The applicant wanted to go back and they asked her to a stay for a couple of years to pass things on to others. Within the next year, she will be able to pass thing on to others.  There are a lot of people who rely on the applicant for guidance. Mr Tslaf stated that they are struggling to find someone to replace the applicant. They have to find someone who is Chinese speaking. It is a long process. 

36. The applicant stated that she complied with previous visa conditions. The Tribunal is satisfied that the applicant has complied with previous visa conditions.  The applicant stated that she will comply with conditions of a visa if she is granted one. The Tribunal is satisfied that the applicant will comply with visa conditions if a Subclass 401 visa is granted to her. 

37. Having considered the oral and written evidence, the Tribunal has concerns as to whether the applicant genuinely intends to stay in Australia temporarily. The Tribunal has concerns that, if the sponsor does not consider the applicant to be qualified at the end of the visa period, the applicant will seek to remain in Australia to continue her training. Another concern is the evidence that the sponsor is struggling to find someone to replace the applicant. As well, a further concern is the applicant’s evidence that if they are not able to find a suitable candidate the sponsor will not just let the applicant go.

38. The Tribunal has considered other relevant matters, including the applicant’s migration history, her evidence about her involvement in the Church, the uncertainty as to when she will be qualified to return to China to continue the work and the sponsor’s statement about the difficulty of finding a suitable candidate to replace her and the uncertainty of when another person will be found to take over from the applicant in her duties. Having taken into account these matters, the Tribunal is not satisfied that the applicant genuinely intends to stay in Australia temporarily. The Tribunal is concerned that if the sponsor decides that the applicant is not qualified at the end of the visa period or if they have not found another Chinese speaking pastor to take over the role of the applicant, the applicant, because of her commitment to the Church, will seek to remain in Australia for a further stay until such time as those matters are resolved.

39. The Tribunal has considered the submission that the applicant wishes to return to China and help people in China. Whilst the Tribunal accepts that applicant wishes to spread the Church’s message in China, it is not satisfied that the applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted.

40. Having considered all of the evidence before it, including her past compliance with visa conditions, whether she intends to comply with conditions to which the Subclass 401, and other relevant matters, the Tribunal is not satisfied the applicant genuinely intends to stay in Australia temporarily to carry out the occupation or activity for which the visa is granted.

41. The Tribunal is therefore not satisfied that the applicant meets cl.401.214.

42. The Tribunal does not accept the allegations made by Mr Tslaf against the delegate. The Tribunal does not accept that the delegate’s decision was rash or that it shows bias or that the approach shows that the delegate was influenced by a cultural stereotype. The Tribunal is satisfied, having taken into account the evidence, that the applicant does not meet the requirements for the grant of a Subclass 401 visa.

43. The applicant has only sought to satisfy the criteria for a Subclass 401 visa in the Religious Worker stream. No claims have been made in respect of the other visa streams. As requirements that must be met by a person seeking the visa in the Religious Worker stream have not been met, the decision under review must be affirmed.

    DECISION

44. The Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.

    D. Dimitriadis
    Member