1502856 (Migration)

[2016] AATA 4111

1502856 (Migration) [2016] AATA 4111 (14 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Hanh Tran

CASE NUMBER:  1502856

DIBP REFERENCE(S):  BCC2014/3537213 CLF2015/18322

MEMBER:Dione Dimitriadis

DATE:14 July 2016

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 14 July 2016 at 3:47pm

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 23 February 2015 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 19 December 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 on the basis that 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 intends to stay temporarily in Australia.

5. The applicant appeared before the Tribunal on 14 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In a letter dated 17 December 2014, the representative stated that the applicant is a Buddhist nun who has been to Australia on a Subclass 428 visa as a Religious Worker on a few occasions. The applicant is now in Australia on a Subclass 428 visa which expires on 5 (sic) January 2015. The sponsor and the nominator are a Temple. The sponsorship will expire and they wish to reapply for the sponsorship. The nominator wishes to continue with the nomination.

9. The applicant, who is a national of Vietnam and was born in 1966, applied for the visa and stated that the sponsor is The Vinh Nghiem Pagoda.

10. The applicant stated in the visa application that she has previously held Subclass 428 Religious Worker visas. On 9 April 2009 she was granted a Subclass 428 visa which ceased on 9 April 2010. On 5 August 2010 the applicant was granted a further Subclass 428 visa which ceased on 1 May 2012 and on 4 January 2013 she was granted a Subclass 428 visa which ceased on 4 January 2015.

11. The applicant holds a Bridging A visa on the basis of the visa application the subject of this review.

12. The information provided by the applicant, about the duration of the Subclass 428 visas she held, is consistent with the Department’s movement records. These records also show that since 20 April 2009, when the applicant first arrived in Australia, she departed Australia four times including departing on 15 April 2012 and returning on 22 January 2013.

13. The applicant stated in the visa application that her position is a Buddhist nun and the duties of the position are to guide, prepare and conduct services for public worship; prepare and deliver talks to the public; and conduct religious services. The applicant stated that the temple will provide food, accommodation and other required expenses.

14. The applicant provided a statutory declaration declared on 15 December 2014 and stated that she is also known as Thich Nu Nhu Chon. Since arriving in Australia on 22 January 2013, she has lived at the address of The Vinh Nghiem Pagoda and Charitable Society Inc. The Pagoda has provided her with free accommodation and meals and some allowance to spend in Australia and sometimes Buddhist practitioners also give her donations.

15. The applicant provided to the Department of Immigration (the Department) a number of documents including copies of her graduation diplomas, a Buddhist Certificate issued in Vietnam in 2001 and a description of her working day, her involvement with the temple and with charitable activities conducted by the temple.

16. The delegate refused the visa application on the basis that the applicant did not satisfy cl.401.214. The delegate stated that the applicant arrived in Australia on 20 April 2009 as the holder of a Subclass 428 visa which ceased on 9 April 2010, and while in Australia, the applicant applied for and was granted a further Subclass 428 Religious Worker visa which ceased on 1 May 2012. The applicant then applied for another Subclass 428 visa offshore and this visa ceased on 4 January 2015. The delegate stated that the applicant has spent a total of 1709 days, which is over four years, in Australia and 426 days outside Australia since 20 April 2009. The delegate was not satisfied that the applicant genuinely intends a temporary stay in Australia and refused the visa.

17. The Tribunal wrote to the applicant on 2 March 2016 and invited her to a hearing on 14 April 2016.  

18. On 11 April 2016 the Tribunal received a statement dated 8 April 2016 from the applicant who stated that when she was living in Vietnam, Phat Quang Pagoda in Melbourne sponsored her to come to Australia on a Subclass 428 visa. The visa was granted in April 2009 and expired in April 2010. She arrived in Australia on 20 April 2009 and stayed at Phat Quang Pagoda in Melbourne to work until February 2010 when the work at the temple was completed. In February 2010 the sponsor, Vinh Nghiem Pagoda, needed a religious worker so they sponsored her. At that time, the applicant was in Melbourne. The visa was granted in August 2010 and expired in May 2012. The applicant came to Sydney and worked for Vinh Nghiem Pagoda until 15 April 2012 when the work at Vinh Nghiem Temple was completed. At the end of 2012, Vinh Nghiem Pagoda again needed a religious worker and sponsored her. The visa was granted in January 2013 and the applicant travelled to Australia on 22 January 2013 and her visa expired on January 2015. The applicant stated that she continued working for Vinh Nghiem Pagoda until 4 September 2014 when she returned to Vietnam to rest. She only intended to stay for a couple weeks. However, at the end of September 2014 she had an accident and had to stay there to receive treatment on her strained leg until 17 November 2014 when she returned to Australia to continue to work in the Pagoda.

19. The applicant stated that on 19 December 2014, when the applicant’s visa was close to expiry she lodged an application for a visa so that she can continue working for Vinh Nghiem Pagoda, but the Department refused her application in February 2015. The applicant stated that the Department refused her visa because she returned to Vietnam for too many days and so she was not needed at the Pagoda. The applicant stated that the temple in Melbourne sponsored her in 2009 and cannot be considered together with the Vinh Nghiem Pagoda in Sydney, which is currently sponsoring her. The applicant stated that, from the time she arrived in Australia in January 2013 until she applied for the visa in December 2014, she was only away from Australia for about two and a half months.

20. The applicant stated that the Department has forgotten that Vinh Nghiem Pagoda needs her to work as a Religious Worker for the Pagoda and sponsored her because she is a Buddhist nun. When she is not needed by the Pagoda she will “return to Vietnam on 4/2012.” (sic) The applicant stated that the work is always needed for Buddhists in Australia because it will help in their path towards happiness and peacefulness and help teenagers who walk the wrong path to come back to the right path. The applicant’s work is needed to help ill people and people who know they are near death and to stabilise their minds.

    The Tribunal hearing

21. The Tribunal informed the applicant that she was refused the visa because she did not satisfy cl.401.214. The Tribunal informed the applicant of the requirements of cl.401.214.

22. The applicant stated that she is currently employed and works for the Pagoda. She mainly prays to Buddha and helps all the people who come to the Pagoda to practise Buddhism there. The applicant has lived at the Pagoda since she arrived in Sydney in February 2010. When she first arrived in Australia, she lived in Melbourne for one year and then she came to Sydney to work for the Pagoda.

23. The Tribunal informed the applicant that she has held several temporary visas and has remained in Australia since 2009 except for some short trips to Vietnam and one longer trip. The applicant confirmed that she arrived in Australia the first time on 20 April 2009 and remained in Australia until 20 January 2010 when she departed Australia. The applicant confirmed that she returned to Australia on 10 February 2010. The Tribunal asked the applicant if she departed Australia on 1 April 2011. The applicant stated that she left on 15 April 2012. 

24. The representative stated that they uploaded the delegate’s decision to the Tribunal. The Tribunal informed the representative that it does not appear to have been provided. The Tribunal informed the applicant that the application for review states that nil documents have been uploaded. The representative provided a copy of the delegate’s decision to the Tribunal.

25. The Tribunal informed the applicant that the Department’s movement records show that she departed Australia on 1 April 2011 and returned on 23 May 2011 and she then departed Australia on 15 April 2012 and returned on 22 January 2013 and she again departed Australia on 4 September 2014 and returned on 18 November 2014.

26. The Tribunal informed the applicant that since 20 April 2009, she has been in Australia for over 1,700 days which is over four years and she has only spent 426 days outside Australia. The Tribunal informed the applicant that the concern is whether she genuinely intends to stay temporarily. The applicant stated that initially, in the first two years, she intended to stay in Australia temporarily only. On 15 April [2012] she returned to Vietnam and stayed there for 8 or 9 months. She went back and lived in Vietnam but at the end of 2011, the workload at the Pagoda was very busy so the Master responsible for that Pagoda sponsored her to return to Australia. The applicant returned to Australia and has lived here until now.  

27. The applicant stated that because of the workload demands, more and more people are coming to the Pagoda to practise Buddhism. The demands are getting higher and higher. The Master at the Pagoda had some work to do overseas. The Pagoda operates every day and the Pagoda needs someone to work there to replace the Master.  

28. The applicant stated that the Master has returned. Every year he goes overseas for charity work. The Pagoda has a lot of social and charity activities.

29. The Tribunal informed the applicant that its concern is whether she genuinely intends a temporary stay in Australia. The Tribunal brought to the applicant's attention that this visa is a temporary visa and there are other visas that allow the holder to stay permanently.  

30. The applicant stated that initially she wanted to come to work for a trial period to see how it was going but the workload became greater at the Pagoda because more and more people come to the Pagoda. So she wants to stay and help the people here.

31. The Tribunal informed the applicant that the visa for which she has applied is a temporary visa and the last three Religious Worker visas she was granted were all temporary visas.  The applicant stated that she wants to stay here to do charity and religious work in Australia. The representative stated that she does not think the applicant has understood.

32. The Tribunal proceeded under s.359AA of the Act and informed the applicant that it will give her particulars of information that the Tribunal considers will be the reason, or a part of the reason, for affirming the decision under review. The Tribunal informed the applicant that the particulars are:

    ·On 20 April 2009 you arrived in Australia as the holder of a Subclass 428 visa;

    ·You departed Australia on 20 January 2010 and returned on 10 February 2010;

    ·Your Subclass 428 visa ceased on 9 April 2010;

    ·On 5 August 2010 you were granted a further Subclass 428 visa which ceased on 1 May 2012;

    ·You departed Australia on 1 April 2011 and returned on 23 May 2011;

    ·You then departed Australia on 15 April 2012 and returned on 22 January 2013;

    ·On 9 April 2009 you were granted a Subclass 428 visa which ceased on 9 April 2010;

    ·On 4 January 2013 you were granted another Subclass 428 visa which ceased on 4 January 2015;

    ·You departed Australia on 4 September 2014 and returned on 18 November 2014;

    ·The information in the Department’s files is that since 20 April 2009 you have stayed in Australia for over 1,700 days, and you were outside Australia for 426 days.

33. The Tribunal informed the applicant that this information is relevant to the review because if the Tribunal were to accept that the applicant has been in Australia for over 1,700 days at time of application, it might not be satisfied that the applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted. The Tribunal informed the applicant that if the Tribunal were to find that the applicant does not genuinely intend to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, the Tribunal would find that the applicant does not satisfy cl.401.214 and she does not satisfy the criteria for the grant of the visa.

34. The applicant stated that she did not go back on 1 April 2011. She went back on 10 January 2010 until 20 February 2010. The applicant showed her passport to the Tribunal. The Tribunal informed the applicant that there is a stamp in her passport showing that she arrived in Vietnam on 1 April 2011 and she left on 22 May 2011.  

35. The applicant stated that she understood the information. The Tribunal asked the applicant if she wished to comment on or respond to the information. The Tribunal took a short adjournment to allow the applicant and her representative to speak together.

36. After a short break the Tribunal asked the applicant if she wanted to make any comments or provide a response. The applicant stated that she does not have anything to say.

37. The Tribunal informed the applicant that it can see that she applied offshore for one of her Religious Worker visas. The applicant stated that she has complied with the requirements of all her Subclass 428 visas and her bridging visas. The applicant intends to comply with the conditions on all the visas she will be granted.

38. The representative stated that the applicant was stressed and confused earlier in the hearing. She did not fully understand what the Tribunal put to her. The representative stated that they would like to provide a further submission to explain that what the applicant applied for is to stay temporarily to help the Pagoda until the time that her visa ceases. The Tribunal allowed the applicant until 17 April 2016 to provide further evidence.

39. On 18 April 2016 the Tribunal received from the representative a statutory declaration declared by the applicant on 18 April 2016. The applicant stated that she was very nervous and anxious at the Tribunal hearing. Her head went blank and she did not understand what was happening and she was unable to answer what the Tribunal asked her.

40. The applicant stated that she has been a Buddhist nun since she finished high school. She has dedicated her life to the complete servitude of the people around her, whether it be in Vietnam or in Australia. The sole reason that she applied for this visa to remain temporarily but long term in Australia is so that she could help the Vinh Nghiem Pagoda and Grand Master there. As time passed, the number of people coming to the Pagoda has increased dramatically and the Grand Master in charge of the Pagoda has expanded it in size, by purchasing land and “build a bigger pagoda”. Thus she was still needed at the Pagoda “since then until current.” (sic)

41. The applicant stated that what she wished to say at the hearing is that, as a nun, and as part of her servitude, as long as she is needed in Australia, she would stay to serve its people. If she is no longer needed, she would definitely return to Vietnam to serve the people there. The representative requested that the Tribunal reconsider the case and allow the applicant to serve Australians at the Pagoda for another short period so that the Pagoda would be able to cope. When she is no longer needed, she will return to Vietnam.

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

    Genuine temporary stay

43. 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.

44. The Tribunal has considered the evidence of the applicant but is not satisfied that she intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted. The Tribunal accepts that the applicant complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, she held was subject. The Tribunal also accepts that the applicant intends to comply with the conditions to which the Subclass 401 visa would be subject.

45. However, the Tribunal must have regard to any other relevant matter. The Tribunal considers the length of stay in Australia, since the applicant first arrived here, to be relevant. The Tribunal also considers the reasons for the applicant’s stay to be relevant, particularly as the applicant’s stay appears to be for an indeterminate period. Information from the Department’s records is that since 20 April 2009 the applicant has been in Australia for over 1,700 days, and has been outside Australia for 426 days. The applicant has been here for a significant period of time and has been granted three substantive temporary visas (Subclass 428 visas). It appears from the evidence that the applicant wishes to remain in Australia as long as she is needed. This could be many years. The evidence is also that more and more people are coming to the Pagoda. In her statutory declaration provided after the hearing, the applicant stated that she wished to stay in Australia as long as she is needed and if she is no longer needed she would definitely return to Vietnam. She stated that she applied for this visa to remain temporarily but long term in Australia. The Tribunal accepts that the applicant wants to stay and help people in Australia. However, the visa is a temporary visa and the Tribunal is not satisfied that the applicant intends to stay here temporarily.

1. The representative requested that the Tribunal allow the applicant to serve Australians at the Pagoda for another short period so that the Pagoda would be able to cope and when she is no longer needed, she will return to Vietnam. No evidence from the Vinh Nghiem Pagoda has been provided to the Tribunal to support the claims. The applicant’s own evidence is that she wished to stay in Australia as long as she is needed.   

2. The Tribunal acknowledges that the applicant was nervous and anxious at the hearing. However, she had the opportunity to provide further evidence after the hearing and she did so. Although the applicant stated in the statutory declaration declared on 18 April 2016 that she wishes to be allowed to serve Australians at the Pagoda for another short period of time,  she also stated that she wished to stay in Australia as long as she is needed.

3. The applicant applied for this visa on 19 December 2014. She has had a further 18 months in Australia since that time. The Tribunal accepts that the applicant is a Buddhist nun and she wishes to help the Pagoda which is becoming busier. The applicant initially went to work at a Melbourne Pagoda for one year and then she has lived at Vinh Nghiem Pagoda since she arrived in Sydney in February 2010. The Tribunal accepts that the applicant departed Australia for a period of approximately nine months from 15 April 2012 to 22 January 2013. However, she has been in Australia for over 1,700 days at the time of the delegate’s decision.

4. The Tribunal has considered all the evidence and has weighed the circumstances. The Tribunal 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 having regard to the relevant matters of the periods during which the applicant has already been in Australia on temporary visas and her statement that she wishes to remain here until she is no longer needed. The Tribunal is satisfied that, if the applicant is needed to work at the Pagoda at the end of an approved visa, she will again apply to remain here.

5. The Tribunal finds that the applicant does not satisfy cl.401.214.

6. 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

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

   Dione Dimitriadis
   Member