1419004 (Migration)

[2016] AATA 3255

1419004 (Migration) [2016] AATA 3255 (12 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Hoang Vo

CASE NUMBER:  1419004

DIBP REFERENCE(S):  ASB2014/2584 CLF2014/140074

MEMBER:Antonio Dronjic

DATE:12 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 12 February 2016 at 11:56am

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 November 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).

2. The applicant applied for the visa on 20 March 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 the delegate was not satisfied that the visa applicant genuinely intended to stay in Australia temporarily.

5. The review applicant applied to the Tribunal on 20 November 2014 and provided a copy of the primary decision record with the application.

6. On 4 November 2015, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting the applicant to provide information in writing as to whether the applicant is the subject of an approved nomination and meets cl.401.212(3) of Schedule 2 to the Migration Regulations. A copy of the relevant regulation was attached to the letter.

7. On 17 November 2015, the applicant’s representative wrote to the tribunal advising that new nomination application was lodged by the sponsoring organisation on 10 November 2015. The applicant submitted:

   ·Financial Statements for the sponsoring organisation for the year ended 30 June 2014;

   ·Copy employment offer;

   ·Letter from Mr Thich Tinh Dao dated 12 March 2014;

   ·Letter from the Barco & Associates public accountants dated 6 November 2015;

   ·Copy of the applicant’s Diploma; and

   ·Copy of the applicant’s CV.

8. On 19 November 2015 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 29 January 2016.

9. On 19 January 2016, the applicant’s representative submitted:

   ·Legal submissions stating that new nomination application was approved on 28 November 2015; that, at the time of visa application, the applicant genuinely intended to stay in Australia temporarily and submitting that the applicant was previously sponsored for a religious worker visa by different Buddhist Temple from Sydney; and

   ·Copy DIBP Nomination approval letter dated 28 November 2015.

10. The applicant appeared before the Tribunal on 29 January 2016 to give evidence and present arguments. 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 her registered migration agent who attended the Tribunal hearing.

11. I welcomed the parties and explained the purpose of the hearing and the issues to be considered. I explained that, in assessing whether the applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, I will consider whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 401 visa would be subject; and any other relevant matters.

12. I indicated that there is no evidence before me that the applicant failed to substantially comply with the conditions of her previous visas. I explained that ‘other relevant matters’ may include the applicant’s personal circumstances; situation in the applicant’s home country, personal attributes and employment background of the applicant, her ability to undertake the nominated position, whether the applicant's proficiency in English is consistent with the nominated employment and the applicant’s immigration history.

13. The applicant is 46 years of age Buddhist Nun from Vietnam. This is the summary of her oral evidence:

14. She became a Buddhist Nun in 1989. For the past 11 years she has been studding and practicing Buddhism. Her education includes university degree and three years of post-graduate studies in Buddhist Theology which enabled her to become a lecturer. She studied English language at the University and believes that she has a basic command of English language.

15. She has four sisters, all living in Vietnam and she keeps regular contact with them. She has no relatives in Australia. Her religious belief prevents her from owning property or being paid wages. In the past, she travelled to Singapore, Philippines and India.

16. She first arrived in Australia in January 2010 as a holder of a visitors’ visa. She resided at a Buddhist Temple in Cabramatta, Sydney and a Monk from this Temple asked her to stay and help. She applied for a subclass 428 visa based on the sponsorship and nomination made by Cabramatta Temple. The visa was granted on 28 June 2010 and remained valid until 10 April 2012. Her second Religious Worker visa was granted on 16 May 2012 and remained valid until 10 April 2014. She was not paid for her work but the Cabramatta Temple provided her with shelter and food.

17. Her intention was to return to Vietnam before her second subclass 429 visa was due to expire. She decided to visit Melbourne before returning to Vietnam. She stayed at the Buddhist Temple in Reservoir and was asked by Temple’s Monk to stay in Melbourne and help as there was severe shortage of monks and nuns at this Temple. She promised that she will stay and help the monk and his congregation for two years. Because of the restrictions imposed on her current bridging visa, she was unable to do so.

18. She described her everyday duties at the Cabramatta Temple and stated that Melbourne Linh Son Temple from Reservoir needs a Buddhist Nun because a Buddhist Monk cannot help female congregation the same way a Nun can. Currently, the Reservoir Temple has two monks and no nuns. She is aware that the Temple made nomination application for her permanent visa but explained that she would like to go back to Vietnam as she is needed there. She just wants to fulfil her promise made to a Monk that she will help the Temple for period of two years. She stated that she has an offer from a Buddhist Temple in Vietnam to live and work there.

19. I granted the applicant additional time to provide documents in support of her application.

20. On 5 February 2016, the applicant’s representative submitted:

    ·Confirmation Letter from Trung Pagoda from Vietnam dated 2 February 2016, as evidence that the applicant was offered a position in this pagoda in 2014 and 2015;

    ·Statutory Declaration from the applicant’s representative dated 5 February 2016, stating that:

    A)    She was instructed by the sponsoring organisation (Melbourne Linh Son Temple from Reservoir) to withdraw the review application related to the department’s decision to refuse the nomination application for the purposes of subclass 186 visa application;

    B)   That the visa applicant instructed her that she intends to accept the offer made by the Trung Pagoda from Vietnam after completing her stay in Australia;

    C)   That the visa applicant complied with her visa conditions and accepts that no further stay condition to be imposed if subclass 401 visa is to be granted.

    ·Legal submissions dated 4 February 2016 stating that the visa applicant agrees to a shorter period of stay if the Department considers that two years is not appropriate period of stay in the circumstances of this case and that a Buddhist Nun is not able to hold any personal assets or receive remuneration for her services to the Temple or community.

21. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Genuine temporary stay

22. 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.

23. There is no evidence before the Tribunal that the applicant failed to substantially comply with the conditions of her previous substantive or subsequent bridging visa.

24. Having regard to the applicant’s oral evidence given at the hearing I am satisfied that the applicant intends to comply with the visa conditions, if the visa is to be granted.

25. I have considered the applicant’s personal circumstances; situation in her home country, personal attributes and employment background. I considered the applicant’s ability to undertake the nominated position, her ability to communicate with congregation in English language and her immigration history.

26. Based on the documentary evidence submitted, including the applicant’s Resume and educational certificates, I am satisfied that the applicant has the skills and ability to undertake the nominated position. I accept that the visa applicant’s education and experience as a Buddhist Nun is relevant to the activities proposed in this application.

27. I considered the applicant’s circumstances in her home country. I accept that the visa applicant is not able to hold any personal assets or receive remuneration for her services and that, because of her religious beliefs, she does not own any property in her home country. She gave evidence that she has four siblings living in Vietnam. She presented documentary evidence that she was offered a position at Trung Pagoda in Vietnam. Based on the evidence before me, I am satisfied that the applicant has substantial personal, cultural and religious ties in Vietnam.

28. I considered the applicant’s stated intention to return to her home country after serving the Melbourne Temple and give significant weight to her statement. I find the applicant to be credible witness and a person devoted to her faith.

29. I considered the applicant’s immigration history. She conceded that she has been granted a subclass 428 visa on two previous occasions but was not sponsored by the same Temple.

30. In considering whether the visa applicant satisfies clause 401.214, I had regard to the Department’s policy guidance as set out in the Procedures Advice Manual (PAM3), acknowledging that I am not bound by it. In respect of clause 401.214 PAM3 relevantly states:

    26      Genuine applicant

    …
    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 a GB-401 visa holder.
    It is not the intention that a visa holder remains on a GB-401 visa for an extended period of time. If applicants apply for a subsequent GB-401 visas officers should consider whether there are any other visa options more suitable for the individual and advise the client accordingly, particularly if it will result in an applicant exceeding four years stay in Australia.
    If, after advice or counseling, a current GB-401 visa holder still wishes to apply for a further visa, officers should consider whether it may be appropriate for a “no further stay” condition (8503) to be imposed on the new visa grant or alternatively, grant the visa (without condition 8503) for a lesser period to give the applicant time to apply for a more appropriate visa. A refusal can also be considered if the applicant has already spent a considerable period of time in Australia, particularly if counseling has already been provided in relation to an earlier visa grant. This is to prevent GB-401 visas being misused by persons who should instead apply for permanent residency or another appropriate visa.

31. There is no evidence before me that the applicant was advised or counselled by the department. I note that the department has the option of granting the visa for a lesser period of time or to impose 8503 condition (no further stay).

32. Based on all the evidence before it, including the sworn oral evidence of the applicant, I am satisfied that the applicant is not attempting to circumvent proper migration channels and use the subclass 401 visa to maintain an ongoing residence in Australia. Having regard to the circumstances of the applicant, I am satisfied that it is not the intention of the applicant to remain on a Subclass 401 visa for an extended period of time. I take the view that in the circumstances of this case there are no other visa options which are more suitable for the individual.

33. In summary therefore, having considered all the evidence before it, and having had regard to the factors prescribed in cl.401.214(a), cl.401.214(b), and cl.401.214(c) of Schedule 2, I am satisfied that the applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted.

34. The Tribunal therefore finds that the applicant satisfies cl.401.214. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

35. 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

    Antonio Dronjic
    Member