Church of Scientology Australia (Migration)

Church of Scientology Australia (Migration) [2021] AATA 3591 (21 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Church of Scientology Australia
CASE NUMBER:  1825103
HOME AFFAIRS REFERENCE(S):          BCC2018/2698635 CLF2018/352192

MEMBER:Katie Malyon
DATE:21 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 21 September 2021 at 5:59 pm
CATCHWORDS
MIGRATION – application for approval of nomination of occupational training position –genuine program tailored to needs of nominee – no response to tribunal’s invitation to provide updated and current information – visa and work history, including extensive experience – only basic information about proposed training and assessment provided with application – no indication of courses being specifically tailored – proposed training period now expired – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 140GB, 359(2), 359C, 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), rr 2.72A(16), 2.72B(3)
CASE
Hasran v MIAC [2010] FCAFC 40
Huo v MIAC [2002] FCA 617
Manna v MIAC [2012] FMCA 28

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 Home Affairs on 15 August 2018 to refuse to approve the nomination made by the Church of Scientology Australia under s.140GB of the Migration Act 1958 (the Act) as well as r.2.72A and r.2.72B of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval of the nomination on 18 July 2018. In its nomination lodged with the Department, the applicant indicated it was seeking approval to provide occupational training to enhance the skills of the nominee, Taiwanese national Shu-fen Sung, in the occupation of Minister of Religion ANZSCO 272211.
A Nomination for a Training Position is made under s.140GB of the Act as well as r.2.72A and r.2.72B of the Regulations. Relevant criteria from the Regulations are extracted in the Attachment to this decision.
The delegate refused the applicant’s nomination on the basis that r.2.72A(16) of the Regulations was not met. After consideration of the nominee Ms Sung’s immigration history in Australia including her holding multiple Religious Worker visas sponsored by the applicant since 30 January 2009, the fact that she became a Scientologist in 1995, details of the training program to be provided and statements from the applicant that Ms Jung has been a senior member of the Church of Scientology for many years, the delegate found that the planned training position was not genuine. The delegate concluded that the nomination application was frivolous with a view to extending Ms Sung’s stay in Australia rather than being a genuine training opportunity.
The applicant provided no documentation to the Tribunal in support of its review application. On 25 June 2019, the Tribunal received notice of the applicant’s appointment of a new representative, registered migration agent Mr Farid Varess. Subsequently, on 10 October 2019, Mr Varess informed the Tribunal that he no longer acts for the applicant and the original representative, the applicant’s Administration Officer Glenn Hunter, was reappointed as its representative.
To enable the Tribunal to assess whether the applicant meets all of the relevant requirements for approval of its nomination, the Tribunal wrote to the applicant on 2 September 2021 pursuant to s.359(2) of the Act and invited it to provide updated and current information to demonstrate that it meets all of the relevant requirements in r.2.72A and r.2.72B(3) of the Regulations. The Tribunal’s invitation letter was sent to Mr Hunter at his email address indicated in the Tribunal’s Appointment of Representative form.
The applicant was advised that, if information in writing was not received by the Tribunal by 16 September 2021 or if the applicant did not, on or before that date, make a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information and, further, the applicant would lose any entitlement it might otherwise have had under the Act to be appear before the Tribunal to give evidence and present arguments.
No information has been provided by the applicant in response to the Tribunal’s s.359(2) invitation: further, no request has been received for an extended period in which to provide the information. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support the review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the current COVID-19 pandemic, evidence that the applicant meets all relevant requirements in r.2.72A and r.2.72B(3) of the Regulations is likely to be forthcoming, whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.
[1] [2002] FCA 617
[2] [2012] FMCA 28
In the opinion of the Tribunal, a significant amount of time has passed since the time of lodgement of the review. The Tribunal wrote to the applicant under s.359(2) of the Act inviting it to provide updated and current information demonstrating that the nomination meets all the relevant requirements of r.2.72A and r.2.72B(3) of the Regulations of the Regulations. The Tribunal is satisfied that its s.359(2) letter was sent to the email address for the representative as set out in the in the Tribunal’s Appointment of Representative form. The applicant has failed to provide any of the requested information referred to in the Tribunal’s s.359(2) letter within the prescribed period set for this purpose, nor has it requested additional time in which to provide the requested information.
In the circumstances, the Tribunal considers the applicant has had sufficient time in which to address all of the issues arising on review, or request an extension of time to address these issues. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s.359C of the Act.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for approval of its nomination. The Tribunal must approve the nomination if all the applicable requirements in r.2.72A and r.2.72B of the Regulations are met.
Absent any submissions or evidence being provided to the Tribunal either at the time of lodgement of the review application or in response to its s.359(2) letter, the Tribunal has considered the on-line nomination application as well as evidence lodged with the Department in support of that nomination. This includes a 3 page letter dated 16 July 2018 signed by Mr Hunter entitled ‘Offer of Training Program’ and a document titled ‘Scientology Ministerial Training Program’. In addition, the Tribunal has considered the delegate’s decision to refuse the nomination, a copy of which was provided to the Tribunal.
Is the proposed training genuine: r.2.72A(16)
It is a requirement of r.2.72A(16) of the Regulations that the Minister is satisfied the nominated program is offered as a genuine training opportunity for a purpose referred to in r.2.72B of the Regulations. As noted above, this was the basis on which the delegate refused the applicant’s nomination.
Departmental records confirm, as set out in the delegate’s decision, that the nominee Ms Jung has held the following 3 visas, all of which have been nominated by the applicant:
1)Religious Worker Subclass 428 visa approved on 27 July 2009 for a period of 2 years to 27 July 2011;
2)Religious Worker Subclass 428 visa approved on 1 December 2011 which ceased on 25 July 2013; and,
3)Temporary Work (Long Stay Activity) Subclass 401 visa approved for the occupation of Religious Worker on 20 January 2014 for a period of just under 2 years ceasing on 1 January 2016.
Further, the delegate notes Departmental records also confirm that, on the 24 December 2015, the applicant lodged a fourth nomination to sponsor Ms Jung on another Religious Worker 401 visa for a further 2 year period from 1 January 2016 to 1 January 2018. That nomination was approved on 16 May 2016. Subsequently, 2 additional nominations for Ms Jung were lodged, the most recent being the current nomination the subject of this review.
The nomination form itself states the applicant is nominating Ms Sung for a Subclass 407 Training visa to enhance her skills for the occupation of Minister of Religion. It also states the training will be full-time ‘general or on-the-job training’ and held at 126 Greville Street, Chatswood, NSW 2067 for a 2 year period from 27 July 2018 to 27 July 2020. The nomination requires the applicant to identify the objectives of the training program and the additional or enhanced skills to be acquired by the nominee. In response to these questions, Mr Hunter states “Please see attached letter”.
In his signed letter dated 16 July 2018 accompanying the nomination, Mr Hunter states under the heading Qualifications:
“Ms Sung became a Scientologist in 1995. She joined the Scientology religious order known as the Sea Organization in 2006. She now wishes to become an ordained Minister and therefore needs to do an official Ministerial training program” (emphasis added).
Mr Hunter also states the proposed training will involve “both course room study and on the job practical apprenticeship in religious devotions” and that the nominee’s training “pertains directly to Scientology religious practices and proselytisation”. Further, he states that in respect of expenses whilst in Australia “Because Ms Sung is a member of the clergy, she has the natural right to the basic necessities of living to be provided by the Church” (emphasis added).
The ‘Scientology Ministerial Training Program’ document also accompanied the nomination and lists 10 components:
·   Potential Trouble Source /Suppressive Person Course;
·   Keeping Scientology Working Course;
·   Volunteer Minister Course;
·   Academy Level 0;
·   Academy Level 1;
·   Academy Level II;
·   Academy Level III;
·   Academy Level IV;
·   Scientology Minister’s Course; and
·   Apprenticeship and Internship in Scientology Spiritual Counselling and Supervision.
In respect of each of these courses, information has been provided under the headings ‘Skills obtained’ and ‘Description’ / ‘Synopsis’. Other than Ms Jung’s name appearing on the first page, there is no consideration of her skills and training needs for any of the specified courses. It is not clear which of the 10 courses are to be undertaken by Ms Jung or, given her extensive experience and the fact that she is already clergy, whether she is exempt from undertaking any of the courses. Nor is there any measure of how the attainment of her skills will be assessed. Further, there is no information about: how the training will be delivered apart from general comments about course room study and on the job practical apprenticeship in religious devotions; who will deliver the training; the qualifications and experience of the trainer; or, any information regarding in what ways the proposed training is specifically tailored to meet Ms Jung’s needs.
As noted above, the applicant did not respond, within the prescribed period, to the Tribunal's letter of 2 September 2021 inviting it to provide of updated and current information which demonstrates that all the requirements of r.2.72A of the Regulations are met at the time of decision. Nor has any relevant information been provided at any stage following lodgement of the review application. Further, because the applicant has lost its entitlement to a hearing, the Tribunal was not able to take oral evidence regarding the proposed structured training plan.
Having regard to Ms Jung’s immigration history as set out in the delegate’s decisions (a copy of which was provided to the Tribunal) it is clear Ms Jung has been successfully nominated for 3 Religious Worker visas by the applicant. The first visa was granted on 27 July 2009, that is, more than a decade ago, and movement records confirm that she has essentially remained in Australia since then. The Tribunal is not satisfied, based on evidence provided that the nominee’s stay in Australia is for genuine training purposes. Rather, it appears to be a process to allow her the opportunity to simply remain in Australia.
Accordingly, the Tribunal is not satisfied that the requirements in r.2.72A(16) of the Regulations have been met.
Although the Tribunal has found that the applicant does not meet the requirements in r.2.72A(16) of the Regulations, it has also briefly considered whether the proposed training will enhance the nominee’s skills as required by r.2.72B(3) of the Regulations.
Will the occupational training enhance the nominee’s skills?
As noted above, the applicant’s nomination states that it will facilitate general or on-the-job training to the nominee Ms Jung in her occupation of Minister of Religion. The stream identified in the nomination is set out in r.2.72B(3) Occupational training to enhance skills. This requires that the Tribunal must be satisfied that the occupational training is:
(i) a structured workplace training program; and
(ii) specifically tailored to the training needs of the nominee; and
(iii) of a duration that meets the specific training needs of the nominee.
The ‘Scientology Ministerial Training Program’ document accompanying the applicant’s nomination lists 10 components of the training program: see para [19] above. The nomination indicates the training will take 2 years. As noted above, course information has been provided under the headings ‘Skills obtained’ and ‘Description’ / ‘Synopsis’. However, other than Ms Jung’s name appearing on the first page of the Scientology Ministerial Training Program, there is no consideration whatsoever of her existing skills and her training needs for any of the specified 10 courses. It is not clear which, is any, of the 10 courses are indeed to be undertaken by Ms Jung or, given her extensive experience and the fact that she is already clergy, whether she is exempt from undertaking any of the courses. As such, there is no indication of courses being specifically tailored to her training needs. Furthermore, there is no indication of any measure of how the attainment of Mr Jung’s skills will be assessed.
As noted above, the applicant did not respond, within the prescribed period, to the Tribunal's s.359(2) letter of 2 September 2021 inviting it to provide of updated and current information which demonstrates that all the requirements in r.2.72B(3) of the Regulations are met at the time of decision. Nor has any relevant information been provided at any stage following lodgement of the review application. Further, because the applicant has lost its entitlement to a hearing, the Tribunal was not able to take oral evidence regarding the proposed structured training plan.
After reviewing the limited evidence provided to the Department, the Tribunal has formed the view that the proposed training program is not a structured workplace training program specifically tailored to meet the training needs of the nominee Ms Jung. In particular, the training subject content is not detailed, no information has been provided how the training will be delivered (apart from a generalist statement about course room study and on the job practical apprenticeship) nor are there identified any measures for assessing Ms Jung’s successful completion of courses and the overall training program. In passing, the Tribunal notes that the proposed 2 year training period expiring July 2020 has already been exceeded by more than 12 months.
Having regard to available evidence, the Tribunal is not be satisfied that the applicant’s occupational training is a structured workplace training program which has been specifically tailored to the training needs of the nominee Ms Jung and that the 2 year duration of the training meets her specific training needs. Accordingly, the Tribunal is not satisfied that the applicant meets the requirements in r.2.72B(3)(a) of the Regulations.
Regulation 2.72B of the Regulations provides that any of the streams can satisfy the alternative criteria for a Subclass 401 Training visa. These alternative training streams are:
·occupational training required for registration etc: r.2.72B(2);
·occupational training for capacity building overseas – overseas qualification: 2.72B(4);
·occupational training for capacity building – government support: 2.72B(5); and,
·occupational training for capacity building overseas– professional development r.2.72B(6).
There is no evidence before the Tribunal that the applicant’s nomination can satisfy the criteria in any of these alternative training streams.
Conclusion
For the reasons given above, the Tribunal is not satisfied that applicant’s nomination meets the applicable criteria to be approved. Accordingly, the decision under review must be affirmed.
DECISION
Katie Malyon

Member

Attachment – Extract from the Migration Regulations 1994

r.2.72A Criteria for approval of nomination — Subclass 407 (Training) visas
(1) This regulation applies to a person:
(a) who is, or has applied to be, a temporary activities sponsor; and
(i) a temporary activities sponsor; or
(ii) if the nomination referred to in paragraph (b) is made on or before 18 May 2017 - a professional development sponsor or a training and research sponsor; and

(b) who has nominated, under paragraph 140GB(1)(b) of the Act, a program of occupational training (the nominated program) in relation to a holder of, or an applicant or proposed applicant for, a Subclass 407 (Training) visa (the nominee).
(2) For the purposes of subsection 140GB(2) of the Act, the criteria that must be satisfied for the Minister to approve the nomination are the criteria set out in this regulation.
Criteria
(3) The Minister is satisfied that the sponsor is a temporary activities sponsor.
(4) The Minister is satisfied that the sponsor made the nomination in accordance with regulation 2.73A.
(5) The Minister is satisfied that the nominee will participate in the nominated program.
(6) If the nominee holds a visa, the Minister is satisfied that the sponsor has listed on the nomination each secondary sponsored person who holds the same visa as the nominee on the basis of the secondary sponsored person's relationship to the nominee.
(7) However, the Minister may disregard the fact that one or more secondary sponsored persons are not listed on the nomination if the Minister is satisfied that it is reasonable in the circumstances to do so.
(8) The Minister is satisfied that the sponsor has provided the following:

(a) information that identifies the employer or employers in relation to the nominated program, including:
(i) the location and contact details of each employer; and
(ii) if the sponsor and the employer are not the same person - the relationship between the sponsor and the employer;

(b) information that identifies the location or locations where the nominated program will be carried out;
(c) information that identifies each member of the family unit of the nominee who holds, or proposes to apply for, the same visa as the nominee on the basis of satisfying the secondary criteria.
(9) For the purposes of paragraph (8)(a), if undertaking the nominated program is a volunteer role (within the meaning given by subregulation 2.75(5) , employer includes the person or organisation responsible for the tasks to be carried out as part of the nominated program.
(10) The Minister is satisfied that the sponsor has certified, in writing and as part of the nomination, whether or not the sponsor has engaged in conduct in relation to the nomination that constitutes a contravention of subsection 245AR(1) of the Act.
(11) The Minister is satisfied that:
(a) there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor; or
(b) if any adverse information is known to Immigration about the sponsor or a person associated with the sponsor — it is reasonable to disregard the information.
(12) The Minister is satisfied that:
(a) the occupational training will be provided directly by the sponsor; or
(b) the sponsor is supported by a Commonwealth agency, and the Commonwealth agency has provided a letter endorsing the arrangement for the provision of the occupational training; or
(c) the sponsor is specified in a legislative instrument made by the Minister for the purposes of this paragraph; or
(d) the occupational training will be provided in circumstances specified in a legislative instrument made by the Minister for the purposes of this paragraph.
(13) The Minister is satisfied that the sponsor does not engage in, or intend to engage in, activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or Australian permanent residents.
(14) The Minister is satisfied that the nominee has functional English.
Note: For functional English, see subsection 5(2) of the Act.

(15) Regulation 2.72B applies to the nomination.
(16) The Minister is satisfied that the nominated program is offered as a genuine training opportunity for a purpose referred to in the subregulation of regulation 2.72B that applies.
r.2.72B Criteria for approval of nomination—alternative criteria for Subclass 407 (Training) visa
(1) For the purposes of subregulation 2.72A(15), this regulation applies to a nomination by an approved sponsor (the sponsor) of a program of occupational training in relation to a holder of, or an applicant or proposed applicant for, a Subclass 407 (Training) visa (the nominee) if any subregulation of this regulation applies.
Occupational training required for registration etc.
(2) This subregulation applies if the Minister is satisfied that:
(a) the occupational training is necessary for the nominee to obtain registration, membership or licensing in Australia, or in the home country of the nominee, in relation to the occupation of the nominee; and
(b) the registration, membership or licensing is required in order for the nominee to be employed in the occupation of the nominee in Australia, or in the home country of the nominee; and
(c) the duration of the occupational training is necessary for the nominee to obtain registration, membership or licensing in Australia, or in the home country of the nominee, in relation to the occupation of the nominee, taking into account the prior experience of the nominee; and
(d) the occupational training is workplace based; and
(e) the nominee has appropriate qualifications and experience to undertake the occupational training.

Occupational training to enhance skills
(3) This subregulation applies if the Minister is satisfied that:
(a) the occupational training is:
(i) a structured workplace training program; and
(ii) specifically tailored to the training needs of the nominee; and
(iii) of a duration that meets the specific training needs of the nominee; and

(b) the occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in a legislative instrument made for the purposes of this paragraph.
(ba) the occupation is applicable to the nominee in accordance with the specification of the occupation; and
(c) the nominee has the equivalent of at least 12 months of full-time experience in the occupation to which the occupational training relates in the 24 months immediately preceding the time of the nomination.

(3A) The Minister may, in an instrument made for the purposes of paragraph (3)(b), specify any matters for the purposes of specifying the applicability of occupations to nominees as mentioned in paragraph (3)(ba), including (without limitation) matters relating to any of the following:
(a) the person who nominated the program of occupational training;
(b) the nominee;
(c) the occupation;
(d) the program of occupational training;
(e) the circumstances in which the occupation is undertaken;
(t) the circumstances in which the program of occupational training is undertaken.

Occupational training for capacity building overseas - overseas qualification
(4) This subregulation applies if the Minister is satisfied that:
(a) the nominee is required to complete a period of no more than 6 months of practical experience, research or observation to obtain a qualification from a foreign educational institution; and
(b) the occupational training is a structured workplace-based training program specifically tailored to the training needs of the nominee.

Occupational training for capacity building overseas - government support
(5) This subregulation applies if the Minister is satisfied that:
(a) the occupational training is supported by a government agency, or by the government of a foreign country that is the home country of the nominee; and
(b) the occupational training is a structured workplace-based training program that is:
(i) specifically tailored to the training needs of the nominee; and
(ii) of a duration that meets the specific training needs of the nominee.

Occupational training for capacity building overseas - professional development
(6) This subregulation applies if the Minister is satisfied that:
(a) the nominee:
(i) has an overseas employer; and
(ii) is in a managerial or professional position in relation to the overseas employer; and

(b) the occupational training is relevant to, and consistent with, the development of the managerial or professional skills of the nominee; and
(c) the occupational training will provide skills and expertise relevant to, and consistent with, the business of the overseas employer of the nominee; and
(d) the primary form of the occupational training is the provision of face-to-face teaching in a classroom or similar environment.

oOOo

[2021] AATA 3591

21 September 2021

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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