1513694 (Migration)

[2016] AATA 3568

1513694 (Migration) [2016] AATA 3568 (24 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jason Paul Solari

CASE NUMBER:  1513694

DIBP REFERENCE(S):  BCC2015/2194742 CLF2015/65022

MEMBER:Glen Cranwell

DATE:24 March 2016

PLACE OF DECISION:  Brisbane

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 24 March 2016 at 10:45am

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 24 September 2015 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 30 July 2015. 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.

5. The applicant appeared before the Tribunal on 24 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Darcie de la Porte.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

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

10. It is not in dispute that the applicant has spent a total of 1,823 days (4.9 years) in Australia on Temporary Religious Worker visas.

11. In considering whether the applicant satisfies clause 401.214, the Tribunal has had regard to the Department’s policy guidance as set out in the Procedures Advice Manual (PAM3), acknowledging that it is 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.

12. There is no evidence before the Tribunal that the applicant was advised or counselled by the Department prior to lodging the present visa application.  

13. Since lodging the present visa application, the applicant has lodged an application for an Employer Nomination Scheme (Subclass 186) visa, which is a permanent visa.  A decision has yet to be made on this application.  While it could be said that the applicant has demonstrated an intention to remain permanently in Australia on the basis of his Subclass 186 visa application, the Tribunal does not consider that the fact of that application alone demonstrates that the applicant does not genuinely intend to stay temporarily in Australia to carry out religious worker activities. It is clear from the evidence that the applicant's intention is to continue his activities with his church in Australia, subject to Australian law.  

14. Based on all the evidence before it, including the sworn oral evidence of the applicant, the Tribunal is 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, the Tribunal is satisfied that it is not the intention of the applicant to remain on a Subclass 401 visa for an extended period of time.

15. 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, the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted.

16. 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.  The Tribunal notes that the Minister has the option of granting the visa for a lesser period of time or to impose condition 8503 (no further stay).

    DECISION

17. 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

    Glen Cranwell
    Member