Cang (Migration)

Cang (Migration) [2020] AATA 2613 (4 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Concepcion Miguelita Cang
CASE NUMBER:  1726512
HOME AFFAIRS REFERENCE(S):          BCC2017/3268708 CLF2017/109552
MEMBER:Karen Synon
DATE:4 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Activity (Class GG) visa.

Statement made on 04 June 2020 at 3:49pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class GG) visa – Subclass 408 (Temporary Activity) – not a genuine temporary entrant – minister of religion – lived in Australia over 8 years on temporary visas – sponsor’s intent for permanent visa – removal of Minister of Religion from skilled occupation list – no exceptional circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2 cl 408.213

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 October 2017 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 8 September 2017. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.408.213 of Schedule 2 to the Regulations because she was not satisfied that the applicant intended to stay in Australia temporarily.
The applicant appeared before the Tribunal on 19 May 2020 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the straightforward nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent. He did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is cl.408.213.
Genuine intention to stay temporarily – cl.408.213
It is a common criterion for the grant of a Subclass 408 visa that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted: cl.408.213. In assessing this, the Tribunal must have regard to the following:
(a)if the applicant has held a substantive visa – 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; and
(b)whether the applicant intends to comply with the conditions to which the Subclass 408 visa would be subject; and
(c)any other relevant matter.
In the present case, the applicant seeks the visa for the purpose of religious work.
In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa: cl.408.213(a).
After reviewing the Department ICSE records, the Tribunal, is satisfied that there is nothing to indicate that the applicant did not comply with the conditions of her last substantive visa or any subsequent bridging visas. She therefore satisfies cl.408.213(a).
The Tribunal must also consider whether the applicant intends to comply with the conditions to which the Subclass 408 visa would be subject: cl.408.213(b). For primary visa applicants, the conditions to which the visa would be subject are 8107 (must maintain participation in activity) and 8303 (no disruptive/violent conduct): cl.408.611(a).
There is no evidence to suggest that the applicant does not intend to comply with the conditions to which the Subclass 408 visa would be subject.
The Tribunal has also considered all other relevant matters: cl.408.213(c).
In considering this the Tribunal raised with the applicant during the hearing its concerns that her immigration history in Australia did not appear to support the requirement that she genuinely intends to stay in Australia temporarily. Further, the Tribunal notes that a submission provided by her representative in relation to a request for Ministerial intervention states that her sponsor “determined to again support [her] for Australian permanent resident status”. The Tribunal therefore asked the applicant to give evidence as to whether she did intend to stay in Australia temporarily should she be granted the 408 visa.
The applicant responded that she was made to understand that her previous rejection was because she did not have a genuine intention to stay temporarily and because she had stayed here quite a long time already. She said the church where she is serving submitted an intention to sponsor her for permanent residency. They tried that pathway but the category of Minister of Religion was removed from the skilled occupation list. Her church then determined to seek a replacement for her but had no luck. The applicant highlighted the advertisements that had been provided but said they did not find anyone who was qualified to take her position. As a Minister of Religion the applicant is always at the disposal of her church and, while she was waiting for someone to replace her, the situation went on for so long. The applicant said her stance as a Minister of Religion is to do what the Lord has told her to do and she has been doing this since she commenced at this church.
The Tribunal pointed out that the Department decision records that at that time of that decision, on 16 October 2017, she had spent 1931 days in Australia working as a Minister of Religion and therefore, at the current time, she had spent over 8 years in Australia. The Tribunal also noted that on her application form she recorded that she only required the visa for a 12-month period until 30 September 2018.
The Tribunal invited the applicant to comment on her length of stay in Australia and the fact that the period for which she had requested the visa had already been exceeded by over 18 months. The applicant agreed that yes, in March 2020, she had been in Australia for 10 years but again emphasised that there is no one who can take her position. The applicant said she understands why the 408 visa was refused and that is why she has decided to apply for Ministerial intervention. The applicant said God knows her heart and she believes there will be another area for her Christian service but her work amongst the Filipino community continues and it would break her heart to leave this community. The church is still praying and wanting someone to take her position. The applicant said that should she be granted the 408 visa that, by the time of it ending, they (the church) would find someone else to take her position. This ministerial work is entrusted to her and is most important. The applicant’s family are in the Philippines and she is a single person with no dependents either in Australia or the Philippines. Her church community is her spiritual family.
The Tribunal asked the applicant to tell it clearly whether she does intend to stay in Australia temporaraily or whether she is seeking a permanent pathway to residency here. The applicant responded ‘to be honest she will gladly accept it and will consider the Lord’s position for her’. She said it was very disheartening to receive the 408 refusal, but she understands she has already stayed for longer than the Department law/policy permits. However, there is a relevant history about her journey here.
The Tribunal accepts that the applicant makes an important contribution to the ministry of the Mueller Community Church (MCC) and especially to the Filipino community and was impressed by her obvious devotion to her vocation. Her advanced Christian education and experience, both overseas and in Australia, clearly equip her well for her ministry. The Tribunal has no doubt that the MCC is very committed to finding a way for the applicant to stay in Australia to continue her work and that the church has made attempts to replace the applicant in her role but believes no candidates were suitable.
However, the applicant's immigration history indicates that she has resided in Australia for a long period of over 8 years since first arriving in March 2012 and that she has always been the holder of temporary visas. The Tribunal is of the view, which it did raise with the applicant during the hearing, that the period of the applicant's stay in Australia as the holder of temporary visas since 2012 casts doubt over whether she intends to stay temporarily in Australia to carry out religious work. Further, information before the Tribunal clearly indicates that the applicant and her sponsoring church are seeking ways for the applicant to stay in Australia permanently and this casts significant doubt on the applicant’s intention to stay in Australia temporarily should a 408 visa be granted.
While the Tribunal accepts that the applicant’s sponsor values her contribution highly, it considers that if the Church wishes to maintain the applicant's employment as a religious worker in Australia, it should consider finding a way to sponsor her under a more appropriate visa programme. Using the temporary activity visa programme to maintain the employment of a religious worker on an ongoing basis is not, in the Tribunal's view, consistent with the purpose of temporary activity programme.
After considering all the evidence before it, including the period of time the applicant has already been in Australia, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.408.213 are not met.
As one of the essential requirements for the visa is not met, the decision under review must be affirmed.
Request for Referral for Ministerial Intervention
In a legal submission received on 7 February 2019 the Tribunal was asked to consider referring this case for Ministerial Intervention in accordance with s.351 of the Act. Section 351 of the Act states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavorable decision.
During the heaing, after explaining to the applicant the Minister’s powers under s.351 of the Migration Act to substitute a decision that is more favourable, if it is in the public interest to do so, the Tribunal also explained that these powers are exercised rarely and that they are non-reviewable and non-compellable.
The Tribunal noted that it had carefully considered the submission seeking support for a referral to the Minister under section 351 of the Act and all the supporting and supplementary documents and invited her to provide any additional submissions or comments.
The applicant reiterated that there was a time when the Minister of Religion occupation was removed from the skilled occupation list and she was disappointed about this because it is a vital role and a vocation for people like her. Her journey has been unique so far and she would like an opportunity to present her case to the Minister. The applicant believes the submissions have covered all aspects of her involvement with the church and believes her case merits Ministerial intervention as she has been in the service of her church for eight years and loves her community. The applicant emphasised that she serves God through her community and it would be encouraging for the Tribunal to refer her case.
Invited to highlight any additional points, the applicant said it was very disheartening when the Department refused the church’s Labour Agreement due to its view that there should only be one Minister for each congregation. This is not possible in her church as it is very large, and the Filipino community is just one aspect of its ministry. The applicant talked about the current situation with COVID-19 and the demands upon her including the many Filipino ladies who work in their aged care provider.
The applicant hopes to continue to serve her community as Minister of Religion; a vocation she has grown to love.
The legal submission made the following points:[1]
[1] In the form submitted – i.e. curriculum vitae referred to as CV and p. refers to pastor.
·The case has been ongoing since 2012. The federal government changed the rules, severely disadvantaging MCC’s efforts to put Pastor Cang forward for permanent residency, twice. MCC stands to lose a valuable long-term member of their pastoral staff whom they have tried to replace (advertising nationally) and found to be genuinely irreplaceable. MCC states that Pastor Cang brings exceptional cultural benefits to the Australian community.
·Mueller Community Church has been unable to find a replacement for pastor Cang. Only 5 CVs were received in response to their advertising…Following the total failure of advertising to yield even a single suitable replacement for pastor Cang, MCC determined to again support Ps Cang for Australian permanent resident status.
·Mueller Community Church affirms that pastor Cang’s work has brought exceptional cultural benefit to the Australian community. The exceptional cultural benefit brought to Australia by Ps Cang is:
oDescribed in the eight supporting letters, especially ‘Letter by the MCC church elders’;
oAffirmed by the 692 people who signed the attached petition; and
oCorroborated by Ps Cang’s CV (and supporting documents) which shows that her whole life has been devoted to Christian ministry work.
·Mueller Community Church is part of a large multifaceted not-for-profit organisation. It Is not just a church. It is part of a larger organisation that includes:
oA 1,570 student school for Prep to year 12, Mueller College;
oA performing arts complex, Muller Performing Arts Centre; and
oA retirement village and aged care facility, Peninsular Palms Aged and Community Services.
This submission outlined the following chronology of ‘significant events’:
·2 March 2012 Ps Cang was granted a 428 visa in the religious worker stream
·10 September 2013 Ps Cang was granted a 457 visa as a minister of religion
· 1 July 2015 options were lost
oministers of religion were made ineligible for ENS direct entry and 457 visas
oan ENS Temporary Residence Transition stream application was not possible for Ps Cang because her employer was an associated entity of her sponsor - that arrangement was legal for a 457 holder but did not meet immigration requirements for ENS TRT at that time. The department did change the rules on the ‘nomination via an associated entity’ issue in due course, but unfortunately that was after Ps Cang’s 457 visa had already expired.
·1 June 2017 MCC requested access to the Minister of Religion Labour Agreement (MoR LA); at that time Immigration policy was that “The nominee is required to have a leadership role within the organisation. We will consider the size of the organisation and its workforce composition if more than one overseas nominee is proposed by the Australian employer.”
·25 August 2017 access to the MoR LA refused for these reasons:
o“…as a general rule there will be no more than one minister of religion at one establishment…”. Our client was very disappointed that their large church did not satisfy the department that more than one minister of religion was needed to pastor to their flock of over 2500 people (consisting of a regular churchgoing congregation of 550 plus 1570 students at their church-school, the 250 residents of their retirement village, the 75 retirees at their on-site aged care facility and a total of about 420 staff across all those ministries). It is noteworthy that MCC employed 4 full time Australian pastors and was only seeking allowance for one non-Australia pastor.
oIt was suggested that a formal skill assessment should be provided to prove Ps Cang’s qualifications (a bachelor degree in Christian Ministries and a Master of Divinity) were equivalent to an Australia bachelor degree. Our client felt this was an unfair comment given that a formal skill assessment was not a requirement of the labour agreement.
·When the MoR LA was declined MCC determined that it needed to replace Ps Cang, and then commenced advertising her role.
·8 September 2017 MCC then sponsored pastor Cang for a 408 visa under the religious work stream so she could continue work on a short-term basis until a replacement was found; Ps Cang applied for a 408 visa on that same day.
·10 September 2017 was the expiry date of Pastor Cang’s 457 visa; she has been in Australia on a Bridging A Visa since that date.
·15 September 2017 MCC’s sponsorship as a as a Temporary Activities Sponsor (for religious work) was approved.
·16 October 2017 Ps Cang was refused a 408 visa because she was not considered to be a genuine temporary entrant because she already been in Australia for more time than was normally permitted by the department’s current policy and on that basis did not meet the GTE rule.
·30 October 2017 AAT review application was lodged for Ps Cang’s 408 visa application. Pastor Cang was (and is now) subject to the effect of section 48 of the Migration Act, so a review application with a view to seeking Ministerial Intervention was seen to be her best option.
In support of this request the following letters of support and testimonials were received:
I.A letter of support dated 21 September 2018 from L.G. Miller on behalf of Elders, Mueller Community Church in which he states that the applicant has worked as a Filipino Pastor from 22 March 2012 and is employed full-time with an annual salary of $66,254. He details the applicant’s experience, including a bachelor’s degree in Christian Ministry and a Master of Divinity as well as eight years ministerial and pastoral roles for Hope Advance International Ministries in Manila Philippines and six years as a Christian missionary in Thailand. Mr Miller provides examples of the applicant’s skills and duties, including Filipino community integration, special needs of the Filipino community, connecting with unchurched Filipinos in the community, translating the Bible to Tagalog and involvement in a variety of ministries within the church.
II.A letter of support dated 21 September 2018 from Kendall Schmidt, a member of Mueller Community Church. Mr Schmidt explains the support provided to him and his wife in their relation to their marriage. Mr Schmidt notes that ‘[the applicant’s] desire to serve the community through living out her faith has encouraged and blessed us all…her work benefits the community at large and everyone gains from her tireless work’.
III.A letter dated 1 September 2017 from L.G. Miller on behalf of Elders, Mueller Community Church requesting that the applicant be granted a 408 visa temporarily to allow the church to find a new pastor, including attached advertisements for a new pastor on Christian Management Australia and Seek.
IV.A letter from Mr Roland Heazlewood, church elder, dated 21 September 2018 who states that its purpose is to ‘appeal against the Department of Immigration’s decision to not allow the applicant “our Filipino Pastor” to gain permanent residency in Australia. The letter notes the contribution the applicant has made to the community as well as the unsuccessful efforts which have been made to find a replacement pastor.
V.A letter from Mr Paul Johnson, Ministry leader, Australian Mission Outreach Support dated 21 September 2018 who records that the applicant is committed and an exceptionally hard worker and has been a great asset to Mueller Community Church and the Filipino community. She has also contributed to the Australian Mission Outreach Support ministry that visits and works in remote indigenous communities in Queensland, Western Australia and the Northern Territory.
VI.A petition titled ‘Let Mueller Community Church Keep [the applicant] Permanently’ comprising several documents.
VII.A letter of support from Sherylene Latonero dated 21 September 2018 noting that the applicant has been a very valuable and important member of the Filipino community and because of her tireless work, so many people are better off and that ‘if [the applicant] is allowed to stay in Australia then our community and country will be so much better off and richer in kindness, good heart, peace and community spirit’.
VIII.A letter of support from Paul Johnstone dated 21 September 2018 noting that the applicant has made an outstanding contribution to the Filipino community throughout southeast Queensland, as well as to the general Australian community and stating that he is ‘aware of your Government’s views in relation to people who come in Australia and fail to assimilate and contribute to our community and country’ and that ‘[the applicant] respects Australia, out values, laws and way of life. She has contributed 100% to making our community a better community and much better place to live’.
IX.A letter of support from Lloyd and Nene Heazlewood dated 21 September 2018 noting that the community has grown significantly since the applicant’s pastoral appointment and ‘she has been a great blessing to our Filipino community helping to meet their spiritual, emotional and social needs’, and requesting that ‘you please give favourable consideration to her request for permanent residency’.
X.A letter of support from Isabel O’Neill dated 21 September 2018 noting the various areas where the applicant has contributed to the community, including consoling and counselling Filipino women, encouraging and supporting staff and parents of Mueller College and Peninsula Palms Residential care facility and Retirement Village and supporting Filipinos in their workplaces.

Relevant to the sponsor’s inability to recruit a replacement for the applicant, a copy of the position description, advertisement and six resumes were provided. Other relevant documents provided were:
·Aerial photos of the church complex and school;
·A map of the Mueller College complex;
·A copy of the Constitution of Redcliffe Assembly for the church, Mueller Community Church;
·The 2016 Annual Report of Redcliffe Assembly, trading as Mueller Community Church;
·Photos of congregation (undated and with no description);
·The ASIC extract for Mueller Community Church;
·Australian Business Number details for Redcliffe Assembly, including Mueller Community Church;
·Australian Taxation Office Endorsement of the sponsor as an income tax exempt charity entity dated 1 July 2000;
·The applicant’s academic transcripts, qualifications and resume;
·The applicant’s taxation payment summaries;
·A Letter of Inviation from Pastor Dinah Fernandez, IRM BKK, Thailand dated 4 September 2017 inviting the applicant to re-visit the Kingdom of Thailand to be part of the Church future expansion programme; and
·An offer letter to the applicant from MCC dated 30 May 2013.
In considering whether it should make a referral that the Minister intervene and exercise his power under s.351 of the Act, the Tribunal has considered the Department’s Policy and Operations documents[2] as to the circumstances in which the Minister may exercise this power. In doing so the Tribunal notes it is not bound by department policy.
[2] Still, in this instance, referred to as PAM3- Ministerial Guidelines – Minister’s guidelines on ministerial powers.
The Ministerial guidelines provide that the Tribunal may refer a matter to the Minister's attention where there are unique or exceptional circumstances and provides the following examples:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.
·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.
·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.
·the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control.
·a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country.
·the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in s.36(2A) of the Act.
The Tribunal has considered this request and the policy outlined above and notes that the only circumstance advanced in the submission is that of exceptional cultural or other benefit which would result from the person being permitted to remain in Australia. While it is no doubt that the applicant has a valuable ministry both within her church community and in the wider local Filipino community, as demonstrated by the many letters of support and signatures to the petition, in the circumstances of this case, the Tribunal is not of the view, based on the evidence provided, that her circumstances either individually or cumulatively, are unique and/or exceptional such that the Tribunal should refer this case.
However, as explained to the applicant at the hearing, it is open to the applicant to make a direct request for Ministerial Intervention.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.
Karen Synon
Member

[2020] AATA 2613

4 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction