1419359 (Migration)

[2016] AATA 3736

1419359 (Migration) [2016] AATA 3736 (8 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr OBAID-UR REHMAN
Mrs KHALIDA REHMAN
Miss SUMMAIYA REHMAN
Master SAAD REHMAN
Master MUHAMMAD REHMAN
Master AHMED REHMAN
Miss SAFIA REHMAN
Master MUHAMMAD OBAID REHMAN

CASE NUMBER:  1419359

DIBP REFERENCE(S):  BCC2014/1719850 CLF2014/141127 CLF2015/75772

MEMBER:Antonio Dronjic

DATE:8 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Temporary Work (Long Stay Activity) (Class GB) visas.

Statement made on 08 April 2016 at 10:59am

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 19 November 2014 to refuse to grant the visa applicants Temporary Work (Long Stay Activity) (Class GB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 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 first named applicant (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 visas 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 applicants applied to the tribunal on 26 November 2014 and with the review applications provided a copy of the primary decision record according to which the first named applicant first arrived in Australia on 23 October 2005 as a holder of an Educational visa, subclass 418, that remained valid until 7 November 2009. While in Australia, the first named applicant applied for and was granted a subclass 457 visa that remained valid until 26 August 2014. The delegate further noted that the applicant spent a total of 1617 days in Australia and 212 days outside Australia since 19 November 2009.

6. On 27 November 2015, the Tribunal wrote to the applicants pursuant to s.359(2) of the Act inviting the applicants to provide information in writing as to whether the first named 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 5 December 2015, the applicants’ representative wrote to the tribunal advising that a religious worker nomination application was approved by the department on 10 November 2015. He enclosed a copy of the Nomination approval notice.

8. On 8 December 2015 the tribunal wrote to the review applicants advising that it had considered all the material before it relating to the applications but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 17 February 2016.

9. On 15 February 2016, the applicants’ representative wrote to the tribunal attaching the letter from Mr Gokler, the Principal of the Darul Ulum College of Victoria; stating that the first named visa applicant will commence handing over any residual “Imam” duties to Abdulla Elleissy who is also qualified as an Imam; that Darul Ulum College will sponsor and nominate Mr Obaid Ur Rehman under the 457 program as an Education Advisor (Religious Curriculum Advisor); that this is a role Mr Rehman has held previously, under both subclass 418 (Education Visa) and subclass 457 (Temporary Work Visa); that Darul Ulum College of Victoria is current and approved 457 Standard Business Sponsor and that the role of an Education Advisor naming Mr Rehman has previously been approved. It was submitted that, in order for him to be eligible to apply for the 457 while in Australia, the first named applicant requires a substantive visa in the form of the 401 visa and that forcing Mr Rehman and his family to travel off-shore to lodge the 457 visa would place him and the family under significant and unnecessary financial pressure and be very disruptive for the children who are all attending school.

10. With the submissions, the representative enclosed:

    ·DIBP Notice of approval of Business Nomination for the position of an Educational Officer (ANZSCO 249311) dated 25 November 2009 (in respect of the first named applicant);

    ·DIBP Notice of approval of a Standard Business Sponsorship for Darul Ulum College of Victoria dated 24 September 2015; and

    ·Copy DIBP policy concerning the ‘Genuine applicant’ criteria.

11. On 16 February 2016, the applicants’ representative wrote to the tribunal attaching a copy of the most recent substantive visa granted to Mr Obaid-Ur Rehman, (subclass 457) as evidence that he was eligible for and was granted a subclass 457 visa on 27 August 2010 to be employed in the role of Education Officer (ANZSCO 249311).  This visa expired on 26 August 2014 and was the last substantive visa held by Mr Rehman before the application for the current 401 was lodged.

12. He also submitted a copy of the Federal Court decision in COT15 v Minister for Immigration and Border Protection [2015] FCAFC 190 of 22 December 2015 (dealing with cancellation of subclass 101 (Child) visa) in support of the proposition that the DIBP policy is not a binding document. It was further submitted that, in order to be able to lodge a subclass 457 visa while in the migration zone, the grant of the 401 for a limited period of between 6 - 12 months would be required.

13. The applicants appeared before the Tribunal on 17 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Abdurrahman Gokler. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicants were represented in relation to the review by their registered migration agent who attended the hearing.

14. 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.

15. I explained that ‘other relevant matters’ may include but are not limited to the applicant’s personal circumstances; situation in the applicant’s home country, personal attributes and employment background of the applicant, his 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.

16. The applicants’ representative submitted that the first named applicant’s employer is an approved standard business sponsor; that a related business nomination application for the purposes of subclass 457 visa application has not been lodged at this stage; that the applicants intend to apply for subclass 457 visa and are seeking that a subclass 401 visa is granted for a short period of time to enable the applicants to apply for a subclass 457 visa on shore.

17. The applicant is 44 years of age national of Pakistan. He is married and has six children, all of them attending school in Australia. His parents, eight brothers and three sisters are all living in Pakistan. His parents own rural property in Pakistan. The applicant has no relatives in Australia.

18. The applicant gave evidence that in 1994 he arrived to Karachi from his village and worked as Imam from 1999 to 2005. Apart from Australia, he travelled to England, Europe and Japan as a tourist. Since arriving in Australia he travelled to Pakistan every two years and stayed there for two months during the school holiday period in Australia.

19. He explained that in order to become Imam in Australia he does not have to be appointed by any religious organisation or Islamic Council. He stated that Members of the School Board and the school principal can appoint a person to work as Imam. He stated that Darul Ulum College never appointed him to be Imam because he was working as an Educational Officer.

20. He gave evidence that, since arriving in Australia in October 2005 he only worked as an Educational Officer. He was sponsored by Darul Ulum College of Victoria for subclass 418 and subclass 457 visa and on both occasions nominated to work as an Educational Officer. He stated that in July 2014, at the time he applied for subclass 401 visa, he started performing some duties of an Imam. At the same time he was performing duties of an educational officer.

21. He then clarified his previous statement and stated that he was in fact appointed by the School Principal and the School Board to work as Imam in July 2014, at the time the application for subclass 401 visa was lodged with the department. He stated that the College also employs another person as an assistant Imam.

22. He stated that if subclass 401 visa is granted to him, he will perform the duties of an Imam for the duration of the visa period, that the proposed period is 4 years and that a position of an Imam is always available at the College.

23. I asked the applicant why he decided to change the occupation from an Educational Officer to Imam. He stated that he would prefer to be employed under subclass 457 visa but because of his English language proficiency, he was unable to meet the criteria for subclass 457 visa. At the time he applied for subclass 401 visa, in June 2014, his employer was not prepared to pay him an annual salary of $96,000 (in which case he would have been exempt from the English language requirement). He stated that his employer is now willing to pay him annual wages that will exempt him from having to satisfy the subclass 457 English language requirements for the position of an Educational Officer.

24. I asked the applicant why he then applied for a religious worker visa if he prefers to be employed as an Educational Officer on subclass 457 visa. He stated that the reason for applying for subclass 401 visa was that at the time of that application, the College was not prepared to pay him $96,400 to work as an Educational Officer.

25. He stated that if he is able to obtain permanent residency in Australia, he would prefer to stay in Australia as this would be better for him and his family. He added that it depends on School Board whether they will nominate him for the permanent residency.

26. I raised my concerns with the applicants whether the first named applicant breached a condition of his bridging visa by performing duties of an Imam from July 2014. I further raised my concern that, according to the applicant’s oral evidence, the only reason for applying for subclass 401 visa was unwillingness of the College to pay the applicant $96,400 in annual salary which would exempt him from the relevant English language requirements for subclass 457 visa. I also noted that in his evidence the applicant stated that he would prefer to stay in Australia on a permanent basis if possible, as this would be better for him and his family.

27. Upon my invitation, the applicants’ representative, Mr Brendan Hillis, submitted that it is not true that unwillingness of the College to pay the applicant $96,000 in annual salary was the only reason for applying for subclass 401 visa. I indicated to the applicants’ representative that I am not prepared to take evidence from him; that he was invited to provide legal submissions and that I intend to grant him additional time to provide a post hearing submissions.

    Oral Evidence of Mr Abdurrahman Gokler, the School Principal

28. The witness confirmed his position at the College. He was appointed to the position of a School Principal in August 2015. He stated that there is a Mosque within the school grounds which serves not only students but wider Muslim community.

29. I inquired about the process of appointing a person to work as an Imam at the College. He stated that the School Board appoints Imams. Prior to July 2014, the school did not have a ‘formal Imam’. He gave evidence that the School Board decided in July 2014 that there is a need to appoint an Imam and the first named visa applicant was considered to be the most suitable person for this position.

30. I asked if and when the decision was made by the Board to appoint Mr Rehman as an Imam. The witness stated that there are six members of the Board. Four of them are residing overseas. As he was not a member of the Board, he stated that he is not certain what happened with a decision to appoint Mr Rehman. He stated his belief that that minutes from the Board meeting would be able to reveal if a person was appointed to a position of an Imam.

31. He stated that from July 2014, Mr Rehman was performing duties of both Educational Officer and Imam. He stated that two other staff members partially contribute to the role of Imam at the School. They are teachers at the school and not officially appointed as Imams. They do lead prayers. He confirmed that he attends the Friday prayers at the Mosque and that the person leading the Friday prayers was mostly Mr Rehman. He stated that Mr Rehman was leading Friday prayers even before July 2014.

32. I asked if the first named visa applicant was ever formally appointed by the School Board to work as Imam and the witness stated that that he does not have that knowledge.

33. I noted that Mr Rehman has been working for the College as an Educational Officer for a number of years. I asked the witness, why the School made decision to sponsor and nominate the applicant to a position of Imam and not an Educational Officer. The witness stated that the Mosque was built in 2003 and that the applicant always worked as Educational Adviser and Imam. I asked if Mr Rehman is appointed to a position of an Imam, will he still be performing duties of an Educational Officer. The witness stated that he cannot comment on that as that will be the decision of the Board.

34. The witness confirmed that the School intends to lodge another business nomination application for the purposes of applicants applying for a subclass 457 visa. Mr Rehman will be nominated to a position of a Senior Religious Curriculum Coordinator and not to a position of an Imam.

35. I asked why was than Mr Rehman nominated for a religious worker visa and the witness stated that the right person to be ask this question is a Board Member as he was not involved in the discussion why was Mr Rehman nominated to be Imam.

36. The witness confirmed that he had discussion with Mr Rehman concerning his ability to meet the English language requirements for a subclass 457 visa and stated that the school is now willing to pay Mr Rehman a salary that would exempt him from having to meet the English language criteria prescribed for the subclass 457 visa.

37. The witness stated that a person working as Imam does not need endorsement of a religious organisation such as Islamic Council or Board of Imams. He stated that to his knowledge, the Board of Imams was not consulted in respect of Mr Rehman’s appointment as an Imam at the College.

38. The witness explained that the school has the Management Committee and the School Board. There are two separate bodies. He stated that Mr Abid Kim (the proposed witness) is not a Member of the School Board and that both he and Mr Kim are sitting on the Management Committee, a body that does not have a power to appoint Imams.

39. I explained to the witness that, a person nominated under subclass 457 visa can only work in his nominated occupation and that this is a condition imposed on subclass 457 visa. I explained that a person would be breaching a condition of his or her 457 visa if he or she works in a position that was not approved under the business nomination application. 

40. The witness stated that Mr Rehman usually works as an Educational Officer from nine to five but after the school hours he would perform duties of an Imam at the Mosque because people respect him. He stated that Mr Rehman was not paid any allowance or salary for this additional work he undertakes as Imam. The witness stated that the school programs will be interrupted if Mr Rahman is not able to continue to work at the College as an Educational Officer.

41. The interpreter advised the tribunal that she will have to leave the hearing.

42. The applicants’ representative indicated that he was not comfortable with interaction between Urdu and English, that the English language is not Mr Rehman’s first language and that this created a problem with his evidence. He submitted that the interpreter will be needed for the rest of the hearing. I noted that Mr Rehman had the interpreter assisting him during the course of the hearing and at no time indicated that he did not understand any of my questions. At the commencement of the hearing Mr Rehman indicated that he is willing to communicate in English language and that he will use the interpreter in case he does not understand my questions or is having difficulties expressing himself in English. In fact, he frequently used the interpreter’s services.

43. I indicated to the applicants’ representative that I do not accept his submissions that there was a problem with the interpreting. The representative submitted that ‘I elicit the information from Mr Rehman’ and that answers were incorrect because of the way I asked questions.

44. I asked Mr Hillis what is the relevance of the evidence proposed to be given by Mr Elleissy and Mr Kim. The representative stated that one of the witnesses is another school Imam who also works as a teacher. I indicated that I am prepared to accept that there are two other teachers performing the duties of an Imam at the College and that role of an Imam was to become a full time position at the college. I noted that this evidence was already obtained from the School Principal.

45. The representative submitted that he is concerned about the process; that the visa application was lodged in July 2014 and that no one should be surprised that the school has now filled this position. He submitted that Mr Rahman has been performing duties of an Imam and he needs time to pass them over to someone else. The representative submitted that roles of an Imam and Educational Officer at the religious school are interconnected.

46. I decided to adjourn the hearing until another interpreter is retained by the tribunal. The representative confirmed that two remaining witnesses do not need the services of an interpreter but that is important that the applicant understand what was stated by those witnesses. He did not object to using a telephone interpreting services. Mr Hillis sought and I granted the applicants time to consult with their representative.

47. The tribunal secured the new interpreter for Urdu and English languages. The hearing resumed and I confirmed with the applicant whether he objects to using the telephone interpreting service. He did not.

48. I explained the issues raised before the adjournment. I noted that a condition imposed on his subclass 457 visa prevented him from working in any other occupation but the one nominated by the sponsoring employer – which was Educational Officer. I further explained that, according to his oral evidence and the testimony received from the School Principal, the reason for applying for a Religious Worker Visa was that, in July 2014, the School was not prepared to pay him a salary that will exempt him from meeting English language requirements prescribed for a subclass 457 visa.

1. In addition, based on the evidence before me, it appears that the school intends to employ him as an Senior Educational Adviser and that business nomination application for the position of a Senior Educational Adviser will be lodged with the department.

2. Finally, I noted that the evidence before me revealed that two other persons are performing duties of an Imam at the College and if the applicant is not allowed to remain in Australia, the problem for the College will be not the applicant’s inability to work as an Imam but his inability to perform duties of an Educational Officer.

3. Mr Rahman stated that he was not breaching immigration rules by working both as Educational Officer and Imam because, at that time, there was no Imam appointed by the School. He was not paid for performing the duties of an Imam; he did it on a voluntary basis and this was not a duty assigned to him by the School.

4. Mr Rahman then stated that he gave me an incorrect answer when I asked him about the reason for applying for a subclass 401 visa. He stated that, at the time he applied for subclass 401 visa, the English language exemption was an annual salary of $96,400. He gave evidence that in July 2014 his taxable income was $107,000 and that in 2015 his taxable income is $93,000. He explained that he earned more money in 2014 than in 2015 because in 2014 the School paid for return tickets for him and his family to travel to Pakistan.

5. I noted that in his oral evidence he previously stated that the reason for applying for subclass 401 visa was his inability to meet the English language requirements for subclass 457. I noted that he is now providing different evidence. The applicant stated that a person assisting him with the application just told him (during the hearing adjournment) that there has been a problem, a mistake in giving the evidence. He identified this person to be Mr Abid Kim.

6. I asked Mr Rahman what was the reason the school did not nominate him for another 457 visa in July 2014. He stated that I should ask the school that question. He stated that at present he is still working as an Education Officer and undertaking duties he is supposed to do.

7. I noted that he previously gave evidence that he applied for a subclass 401 visa because the school was unwilling to pay him annual salary of $96,000 which would exempt him from meeting the subclass 457 English language requirement. He stated that he is aware that the school now intends to nominate him under subclass 457 visa for the position of a Senior Educational Adviser. He stated that at this time no employment agreement has been signed in respect of this position. He believes that he will be paid the annual salary of $96,400 as this is the 457 visa requirement. He confirmed that the School Principal told him that he will be paid these wages.

8. I asked the applicants representative to explain the relevancy of the evidence proposed to be given by Mr Kim and Mr Elleissy. The representative submitted that the proposed witnesses can give evidence related to the short term role of an Imam before Mr Rehman is nominated for the 457 visa. The school is proposing that Mr Rehman assist in transferring duties he was undertaking as an Imam to two other persons undertaking this job.

9. I indicated that I accept on the evidence before me that the school employs two other teachers performing duties of an Imam and that Mr Rehman performed duties of an Imam since 2014. For this reason I decided not to take evidence from Mr Elleissy or Mr Khan as I have already received relevant evidence from the applicant and Mr Gokler.

10. We discussed the options of Darul Ulum College lodging a new business nomination for the purposes of Mr Rahman’s application for 457 visa.  The representative submitted that he will be able to lodge a 457 business nomination application within 30 days. He submitted that the school would prefer that the applicant remains in Australia in order to avoid disruption in the course programs. I indicated that I may be willing to consider postponing my decision in the present review until the new 457 nomination was lodged at the Department by the College.

11. On the applicants’ representative request, the hearing was adjourned in order to enable the representative to obtain further instructions.

12. The hearing resumed and the School Principal asked me if I can postpone my decision on review until the end of November 2016 when the school holidays begin. I indicated that I can postpone making my decision for another 30 days until the representative prepare and lodge a 457 business nomination application with the department but that I cannot postpone making my decision until November 2016. I noted that the next school holiday is in March 2016.

13. I granted the applicant additional until 17 March 2016 to provide additional submissions and documents in support of the application.

    Post Hearing Correspondence

14. On 2 March 2016, the applicants’ representative wrote to the tribunal attaching a certified copy of the employment contract between Darul Ulum College and Mr Obaid-Ur Rehman. This contract was lodged on 7^th October 2009 with the 457 business nomination application.  A copy of the relevant DIBP nomination application receipt was also attached.

15. The representative inter alia submitted that:

    ‘the actual role Mr Obaid-Ur Rehman was employed under, and the duties which were set out in the 457 Nomination was “Imam & Religious Activities Coordinator.

    This may go some way towards addressing and explaining the Tribunal’s question and confusion at the hearing about why the College nominated Mr Rehman under a Religious Worker (401) visa, rather than under the 457.  The simple answer was that the College wanted a dedicated full time Imam and he was the most qualified at the time.  However, with the passage of time and the 401 being refused, the College has looked at other ways to cover the duties.  As the College indicated during the hearing, the Imam role was to be substantially expanded.

    Clearly the salary Mr Rehman received for his role had substantially changed since 2009.  

    As he was employed under a 457 as an Imam and conducting the duties of both an Imam and a Religious Curriculum Advisor, then we submit that it is reasonable to request that the 401 visa be granted for a short period of time in order for him to fully transfer those duties across to the other workers employed by the College who are also undertaking the Imam’s role”.

16. On 3 March 2016, the applicants’ representative wrote to the tribunal attaching copies of the PAYG Summaries for Mr Rehman for the years 2014 and 2015 as evidence that in the year to 30^th June 2014, Mr Rehman was paid a gross salary of $107,514.00; and in the year to 30^th June 2015, Mr Rehman was paid a gross salary of $93,380.

17. The applicants’ representative further attached:

    ·A copy of the employment agreement between Mr Rehman and Darul Ulum College dated 18 September 2009 as evidence of Mr Rehman’s annual salary of $50,653 not including superannuation and allowances for housing, school and medical cost;

    ·Copy offer of employment letter from Darul Ulum College dated 18 September 2009 stating that the offered position to Mr Rahman is Imam and Religious Activities Coordinator; and

    ·Job Description for a position of an Imam and Religious Activities Coordinator.

18. The representative submitted that these documents showing the relevant salary, in conjunction with the contract, show that at the time of the Religious Worker (401) visa was lodged, Mr Rehman could have met the criteria for a 457 (with only minor adjustment to his salary), and the duties of Imam were part of his duties as a Religious Activities Coordinator.

    It was further submitted that:

    ‘the role of Imam was to become a full time role with a dedicated Imam.  Mr Rehman had been undertaking part of this role as part of his duties as the Religious Activities Coordinator.  Had the Tribunal taken evidence from Mr Abid Jadoon, much of this could have been explained’.

    …’ on the basis of this information, in 2014, Darul Ulum College had a genuine intention of formalising and expanding the role of Imam. The visa applicant was the most suitably qualified person to perform this role, as it was part of his role as it existed at the time.  While on the Bridging Visa A which was granted on the basis of the lodgement of the 401 visa, Mr Rehman continues to perform the duties of Religious Activities Coordinator, including some duties as an Imam.

    ‘Just to be clear, Darul Ulum College of Victoria, and Mr Obaid-Ur Rehman, still want the GB-401 (Religious Worker) visa to be granted.  They request it to be granted for 30 days, so as to give Mr Obaid-Ur Rehman (and his family) the opportunity to apply for another visa subclass, for which he is eligible’.

    …We note the Member spent some time investigating whether the visa applicant might have an intention to remain in Australia either longer term, or permanently. The Member highlighted this as the crucial issue for him, and that was the primary area of compliance which he was most concerned about. The Member questioned whether the applicant could meet the “genuine intention” requirement as set out in Subclause 401.214 of the Migration Regulations.

    However, we submit that the Tribunal is asking itself the wrong question, and applying the wrong test in respect of Subclause 401.214.  With respect, the question is not, whether the visa applicant has an intention to remain in Australia either long term or permanently.  The correct question is, and the correct test is, does "[t]he applicant genuinely intend[s] to stay in Australia to: “carry out the occupation or activity for which the visa is granted …”. 

    Clearly in this case, that occupation/activity is that of an Imam or Minister of Religion.
    We submit that ALL the evidence supplied to date and ALL the evidence given at the hearing indicates that while Mr Rehman “might” intend to remain in Australia, it is not his intention to carry out the role as, or of an Imam or Minister of Religion (beyond any very short term visa grant) which might be granted.  We remind the Tribunal that Mr Rehman has never held a GB-401 visa (or any other form of Religious Worker visa);  

    Nor is it his intention to “stay” on a 401 visa other than for the shortest time possible (given he has never actually been granted a GB-401 visa previously).  The evidence is overwhelming that it is Mr Rehman’s genuine intention to be employed as a Senior Education Advisor on a UC-457 visa as soon as that can be organised.  It is also the College’s genuine intention that he be nominated under the 457 program as a Senior Education Advisor (The Member has already strongly indicated he accepted this at the hearing).

    Therefore, we submit that Mr Rehman neither intends to remain on the 401 visa (for longer than 30 days), nor does he intend carry out the role of Imam, other than what is necessary to fully hand over those parts of his existing duties.   Evidence was provided that there are other suitably qualified employees of the College who will take over this role fully and again, the Tribunal has indicated it accepts this.

    In respect of Subclause 401.214 (a):- We submit that Mr Rehman has always complied substantially with the conditions on his 457.  While there was some question about whether acting as a part time and voluntary Imam fell within the parameters of a Religious Activity Coordinator.  We submit that a copy of his contract and duty statement were submitted to DIBP as part of the 2009 457 visa application.  Both the Nomination and 457 visa application were granted.

    In respect of Subclause 401.214 (b):- Evidence has been lead that Mr Rehman intends to move from a 401 (if granted) as quickly as possible.  He will abide by all conditions attached to his 401 visa and all conditions attached to any subsequent 457 visa.  As the College has identified other qualified candidates for the Imam role, the duties of Imam will not be part of his role one he moves onto a 457 visa.

    In respect of Subclause 401.214 (c):- Darul Ulum College have indicated that there will be significant disruption for the College, its staff and students should Mr Rehman be forced to depart Australia.  Mr Rehman has also indicated the significant hardship which he and his family will endure if they are required to depart Australia to lodge an application for any subsequent alternative visa application.

    Under policy, the applicant meets Subclause 401.214, if the stay in Australia on a GB-401 visa is only enough time to:
    The applicant has stated, and provided evidence to support his intention to apply for another visa subclass which he is eligible for, and which he last held.  That being a UC-457 visa.

    • finalise their assignment and allow them to depart”;  or
    • allow only enough time for them to apply for another visa subclass if they are eligible and state their intention to do so."

19. On 11 March 2016 the applicants’ representative submitted an application for the presiding member to recuse himself in this matter.  Mr Hillis submitted that:

    ‘At the hearing we raised a number of concerns with you as Member in respect of both the procedure of hearing and your handling of the hearing as the presiding Member.  At hearing, you dismissed all of our concerns.

    We believe the visa applicant was not afforded procedural fairness and natural justice in respect of the hearing.  We believe your actions as the Member deprived the applicant of the possibility of a successful outcome and whether consciously or unconsciously created a hostile environment designed to intimidate the applicant and to facilitate pre-judgement.  

    In our opinion, the Member did "not bring an impartial and unprejudiced mind to the resolution” of the matter before the Tribunal.  We are also concerned that the Member’s actions during the hearing gave rise to an apprehension of bias, or actual bias.  Certainly the question asked at the hearing of the applicant if he had "ever returned to Yugoslavia” raised a number of questions, which were then reinforced by the handling of the hearing. 

    We request the Member recuse himself of this case and that the matter be constituted to another Member for re-hearing according to the requirements of S.2A of the AAT Act and S.353 of the Migration Act.

    The application for recusal

20. Under the heading Apprehended bias/bias, the applicants’ representative provided the following particulars:

    • The Member asked the applicant if he had ever returned to Yugoslavia. The

    applicant is a Pakistani national of Muslim faith who has never been to
    Yugoslavia
    be reasonably open to being persuaded by the evidence
    achieve a pre-determined position rather than an unbiased exploration of the
    facts

    • The Member did not appear to enter the hearing with an open mind or appear to
    • The Member’s line and method of questioning appeared more designed to

21. I have carefully listened to the audio recordings from the hearing. The question to the applicant was “have you ever travelled to any other country apart from Yugoslavia”. I immediately corrected myself and asked if the applicant ever travelled to any other country apart from Australia. This was a simple slip of a tongue barring no relevance to the conduct or the outcome of this review. To claim that a simple ‘slip of a tongue’ amounts to apprehended or actual bias is in my view preposterous. I do not accept that mentioning Yugoslavia (incidentally the country I was born which no longer exist) instead of Australia amounted to either actual or apprehension of bias.

22. In his application, Mr Hillis’ has failed to provide particulars of the claim that:’ the member did not appear to enter the hearing with an open mind or appear to be reasonably open to being persuaded by the evidence’. Similarly, he gave no particulars as to why and how ‘Member’s line and method of questioning appeared more designed to achieve a pre-determined position rather than an unbiased exploration of the facts’. In the absence of any particulars I do not accept this claim.

23. According to judicial consideration of apprehended bias, an allegation of apprehended bias must be ‘firmly established’[1] . A judge should not disqualify himself or herself on the ground of bias or reasonable apprehension of bias unless ‘substantial grounds’ are established[2].

    [1] R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 553-554; R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 262)

    [2] ( Bienstein v Bienstein (2003) 195 ALR 225 at 233 [36] per McHugh, Kirby and Callinan JJ.)

24. Having regard to the conduct of the hearing and the assertions made by the applicants’ adviser in his submissions of 11 March 2016, and the conduct of the hearing as a whole, I am satisfied that there is nothing to suggest that I was or am so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

25. Further I do not consider that a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process might reasonably apprehend that I might not have brought an impartial mind to making the decision.

26. Having considered matters raised by the applicants’ representative in the application for my recusal, I am satisfied that I bring an impartial and open mind to all of the issues in the proceedings and that the applicant did not establish grounds for my recusal based on either actual or apprehended bias.

27. Under the heading Procedural Fairness, the applicants’ representatives provided the following particulars:

    • The change of interpreter in the middle of the hearing was unfair on the

    applicant during the hearing;
    rather than the Urdu;
    translated to the applicant, including exchanges between the writer and the
    Member, nor was any of the evidence given by the witness translated for the
    applicant's benefit which was procedurally unfair to the applicant;
    Adjournment;
    of a successful outcome

    • The Member chose to undertake a large portion of his examination in English
    • Critical information, discussions and exchanges during the hearing were not
    • The Member questioned the need for the interpreter at all after the first
    • The Member’s conduct of the hearing deprived the applicant of the possibility

28. During the course of the hearing, neither the applicant nor his representative objected to the change of the interpreter. In fact, both of them specifically stated that they do not object to have a ‘telephone interpreter’. Mr Hillis provided no particulars as to why the change of the interpreter was unfair on the applicant. In the absence of any particulars I do not accept this claim.

29. As for the claim that ‘The Member chose to undertake a large portion of his examination in English rather than the Urdu’, aside from the fact that I do not speak Urdu, English language is the official language at this Tribunal. As noted previously, at the commencement of the hearing I asked Mr Rehman if he would like to communicate with me in English language. I explained to the applicant that if he does not understand any of my questions or is unable to express himself in English language we will use the interpreter. Mr Rehman agreed to do so.

30. Mr Rehman has been living and working in Australia as an Educational Officer since October 2005. At no time, during the course of the hearing, Mr Rehman raised any concerns related to his ability to understand what was happening at the hearing. He often used the services of the interpreter if he was unable to express himself in English language. In addition, the hearing was adjourned on two occasions in order to enable Mr Rehman to consult with his adviser.

31. The hearing did not resume until the new interpreter was retained by the Tribunal. I am satisfied that Mr Rehman was able to understand all critical information, discussions and exchanges during the course of the hearing and was not in any way disadvantaged.

32. Mr Hillis’ has failed to provide particulars of the claim that the Member’s conduct of the hearing deprived the applicant of the possibility of a successful outcome. In the absence of any particulars I do not accept this claim.

1. Under the heading Natural Justice, the applicants’ representatives provided the following particulars:

   • The Member’s style of questioning the applicant was adversarial, harassing and

   at times bullying and created a hostile hearing environment which resulted in
   the applicant feeling confused and stressed as to what he was being asked;
   then treated those speculations as fact;
   and the witness, and then asked other questions before each had time to answer;
   then refused to take evidence from a relevant witness;
   prescriptive in his direction of the role of the representative;
   representative before inviting him to be examined in English. The
   representative would have advised the applicant to only engage in Urdu.

   • At times the Member asked both the applicant and the witness to speculate,
   • On a number of occasions the Member asked questions of both the applicant
   • The Member identified issues which he highlighted as important to the case,
   • Given the applicant’s mother tongue was not English, the Member was over
   • The Member should have given the applicant an opportunity to consult with his

2. I have carefully listened to the audio recordings from the hearing and do not accept that I was in any way hostile derisory or aggressive towards the visa applicant or his witness. At all time, Mr Rehman was treated with respect and the only person who attempted to create a hostile hearing environment was Mr Hillis. When invited to provide legal submissions, Mr Hillis stated that Mr Rehman gave wrong evidence; he stated that it is not true that unwillingness of the College to pay the applicant $96,400 in annual salary was the only reason for applying for subclass 401 visa. When I told Mr Hillis that I am not willing to take oral evidence from legal representative and that he is given an opportunity to provide legal submissions, his demeanour changed.

3. I do not accept Mr Hillis’s claim that the ‘Member was over prescriptive in his direction of the role of the representative’. Despite of the provisions of s. 366A(2) of the Act, I invited the applicants’ representative on several occasions to provide legal submissions. In addition, I adjourned the hearing on two occasions in order to enable Mr Rehman to consult his adviser. He was also granted additional time to provide post hearing written submissions.

4. Having considered matters raised by the applicants’ representative in the application for my recusal, I am satisfied that I bring an impartial and open mind to all of the issues in the proceedings. I have carefully considered the application and for the above reasons decided not to recuse myself from this matter on the grounds of apprehended bias.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Genuine temporary stay

5. 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.

6. In considering whether the first named 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.

7. Based on the evidence before me, including the oral evidence given by both Mr Rehman and Mr Gokler I am not satisfied that Mr Rehman genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted. In his submissions of 3 March 2016, the applicants’ representative wrote the following:

   ‘We submit that ALL the evidence supplied to date and ALL the evidence given at the hearing indicates that while Mr Rehman “might” intend to remain in Australia, it is not his intention to carry out the role as, or of an Imam or Minister of Religion (beyond any very short term visa grant) which might be granted..

   … The evidence is overwhelming that it is Mr Rehman’s genuine intention to be employed as a Senior Education Advisor on a UC-457 visa as soon as that can be organised.  It is also the College’s genuine intention that he be nominated under the 457 program as a Senior Education Advisor”

8. Based on Mr Rahman’s oral evidence, I am satisfied that, in July 2014, the school was unwilling to pay him annual base salary of $96,400 (which would exempt him from meeting the subclass 457 English language requirements) and the decision was made to apply for a subclass 401 visa instead.

9. I do not accept the submissions made by Mr Hillis that based on Mr Rehman’s gross salary of $107,514 in 2014 financial year, he would have been able to apply for subclass 457 visa and be exempt from the English language requirements.

10. Pursuant to cl.457.223(6)(a), the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph. In July 2014, the relevant instrument was IMMI 14/009, according to which the applicant may be exempt from satisfying relevant English language requirement if his or hers base salary was $96,400 per annum. The base rate of pay is the person’s rate of pay payable to an employee for his or her ordinary hours of work, not including any of the following:
    
    (a)    incentive-based payments and bonuses;
    (b)    loadings;
    (c)    monetary allowances;
    (d)    overtime or penalty rates;
    (e)    any other separately identifiable amounts.

11. The applicants’ representative provided a copy of the employment agreement dated 18 September 2009 between Mr Rehman and Darul Ulum College evidencing the base rate of pay to be $50,653 not including the superannuation. This amount was considerable less than $96,400 required by the relevant instrument.

12. The reason for seeking a grant of a subclass 401 visa was articulated in Mr Hillis’s submissions as:

    ‘Just to be clear, Darul Ulum College of Victoria, and Mr Obaid-Ur Rehman, still want the GB-401 (Religious Worker) visa to be granted.  They request it to be granted for 30 days, so as to give Mr Obaid-Ur Rehman (and his family) the opportunity to apply for another visa subclass, for which he is eligible’.

13. In order words, the reason for seeking the subclass 401 visa grant is to enable the applicant and his family to apply for a subclass 457 visa on shore.

14. During the course of the hearing Mr Hillis, who is also acting for Darul Ulum College, indicated that the standard business sponsorship application made by the college was approved by DIBP on 24 September 2015 and the he would be able to lodge the associated business nomination application within 30 days. I indicated to the applicant that I am willing to postpone making my decision for 30 days.

15. After consulting Mr Hillis, the school principal asked if I can postpone my decision until November 2016 so that applicant and his family can depart Australia during the school holidays period and lodge an of shore application for subclass 457 visa.  I was not prepared to delay making my decision for the proposed period and noted that the next school holiday is in March 2016.

16. During the course of the hearing I raised the issue whether Mr Rehman failed to substantially comply with the conditions of his previous substantive or subsequent bridging visa. Both Mr Rehman and the school principal gave evidence that Mr Rehman performed duties of both Educational Officer and Imam since July 2014.

17. Mr Rehman’s last substantive visa was subclass 457 and it was subject to 8107 condition.

    Relevantly, condition 8107 (3) prescribes:

    (3)      If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)      the holder:

    (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and…

18. In his submissions of 3 March 2016, the applicant’s representative confirmed that Mr Rehman was ‘employed under a 457 as an Imam and conducting the duties of both an Imam and a Religious Curriculum Advisor’.

19. I note that there is no such an occupation listed in the ANZSCO dictionary.  According to DIBP nomination approval letter of 25 November 2009 submitted by the applicants with their application, Mr Rehman’s nominated occupation was an Education Officer. The actual ANZSCO code used in the nomination approval letter was ANZSCO 249.311. This code refers to unit group 2493 Teachers of English to speakers of other languages. The tasks of this occupation include:

    oassessing the extent of language difficulties in students for whom English is a second language

    oteaching students individually and in small groups out of the regular classroom, and assisting students within normal classroom settings

    oteaching students English language skills using a variety of methods including lecture and visual demonstration

    oproviding assistance to other classroom teachers by designing special teaching programs for students with English language difficulties

    odesigning and producing teaching materials and adapting existing materials

    opreparing course outlines and goals

    oassigning lessons, correcting homework, and preparing and grading exams

    oanalysing, recording and reporting progress to regular classroom teachers, parents and students

100.   It is evident from the above ANZSCO description of the tasks that this occupation does not list any duties usually performed by religious workers. However, I accept that, at an Islamic school, the roles of an Educational Officer and Imam may be interrelated. For that reason I am satisfied that Mr Rahman substantially complied with his visa conditions despite of the technical breach of 8107 condition.

101.   Finally I do not accept the submissions advanced by the applicants’ representative that, by inquiring whether Mr Rahman intends to remain in Australia permanently, the tribunal asked itself the wrong question and applied the wrong test in respect of Subclause 401.214. I do not accept the submissions that I considered this to be the ‘crucial issue’ before me. However, in my view, this is a relevant matter for the purposes of cl.401.214(c) and in particular to the considerations whether the position has been created to secure the person's stay in Australia. As per my findings that in July 2014, the school was not prepared to pay Mr Rahman’s a base salary of $96,400 in order to exempt him form the English language requirements (for the purposes of applying for subclass 457 visa), the position of an Imam was created for the purposes of extending Mr Rahman’s stay in Australia.

102.   I considered and accept the submissions that the applicant, his family and the college will be inconvenienced if the applicant is required to depart Australia in order to apply for a subclass 457 application of shore. I accept that the school programs may be interrupted. However, I am not prepared to make findings that Mr Rehman genuinely intends to stay temporarily in Australia to carry out the occupation or activity of an Imam when he, according to the evidence before me, intends to work as a Senior Educational Adviser or for the purposes of enabling him to apply for subclass 457 visa on shore.

103. In summary, having considered all the evidence before it, and having had regard to the factors prescribed in cl.401.214 of Schedule 2, I am 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.

104.   The first named 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.

105.   As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 401 visa, the secondary applicants do not satisfy the secondary criteria for the grant of the visa, in particular cl.401.311(a) which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 401 visa.

DECISION

106.   The Tribunal affirms the decisions not to grant the applicants Temporary Work (Long Stay Activity)  (Class GB) visas.

Antonio Dronjic
Member