Davinder Kaur (Migration)

[2022] AATA 3131

Davinder Kaur (Migration) [2022] AATA 3131 (9 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Davinder Kaur
Mr Lakhbir Singh Singh
Miss Guneet Kaur Batth
Miss Bhaveet Kaur Batth

REPRESENTATIVE:  Mr Richard Glazbrook (MARN: 9358141)

CASE NUMBER:  1922683

HOME AFFAIRS REFERENCE(S):          BCC2019/3421989

MEMBER:Alan McMurran

DATE:9 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Activity (Class GG) visas.

Statement made on 09 September 2022 at 9:51am

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – religious worker stream – society pastoral worker – qualifications and experience – no response to tribunal’s invitation to provide information – education and employment history not related to religious work – proposed period of stay now expired – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C(1)(b), 360(2)(c), (3)
Migration Regulations 1994 (Cth), Schedule 2, cls 408.219A, 408.223(d), 408.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 15 August 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 30 July 2019 to refuse to grant the applicants Temporary Activity (Class GG) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Mrs Davinder Kaur, is a 43-year-old citizen of the Republic of India, who arrived in Australia on 24 Ocotber 2009.The second to fourth named applicants (“the secondary applicants”) are members of the applicant’s family unit. The applicant has sought the visa to work in the occupation of Religious Worker, sponsored by the Guru Nanak Society of Australia Inc.(“the sponsor”).

3. The applicants applied for the visas on 8 July 2019. 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 (Cth) (the Regulations). At least one member of the family unit must satisfy the primary criteria, comprising the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22. The secondary applicants are dependent upon the outcome of the application by the primary visa applicant, Mrs Davinder Kaur.

4. The delegate in this case refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl 408.223(d) of Schedule 2 to the Regulations because the delegate found the applicant did not have the appropriate qualifications and experience to undertake the activity of a religious worker. The delegate found that the applicant did not have any ongoing association with a religious institution for at least two years prior to the visa application and has no direct religious work experience.

5. On 29 July 2022, the Tribunal sent a letter to the applicant under section 359(2) of the Act inviting her to provide information as to her appropriate qualifications and experience to provide services as a religious worker. The applicant was requested to respond by 12 August 2022, failing which she was informed that she would lose any entitlement she might otherwise have to appear in the Tribunal to give evidence and present arguments. The applicant was informed that she could seek an extension of time to respond should she need to do so. On 15 August 2022, the Tribunal noted an error in its record of the representative’s email address and contacted the representative to confirm his current email address. The representative advised that he had not received the s 359(2) letter and confirmed his primary email address The letter was re-sent to the applicant on 15 August 2022, to the representative’s correct email address, who indicated to a Tribunal officer that he was preparing documents to send through. The Tribunal letter required a response by 29 August 2022.

6. The applicant did not respond to the Tribunal by the due date, or at all. No extension of time was sought and no reply was made to the Tribunal from or on behalf of the applicant. This was so, notwithstanding that the Tribunal officer had spoken with the applicant’s representative on 15 August 2022. The Tribunal record indicates the Tribunal letter was sent on 15 August 2022 to the email address notified for communicating with the applicant. No explanation has been supplied as to the failure by the applicant to provide the information requested.

7. Section 360(2)(c) of the Act applies, which provides that where the applicant has not provided information when invited to do so, in accordance with section 359C(1)(b), the Tribunal may make a decision on the review without taking any further action to obtain the information. Section 360(3) further provides that where section 359C is enlivened and applies, the applicant is not entitled to appear before the Tribunal. As a result, the Tribunal has cancelled the hearing on 12 September 2022 and is proceeding to determine this review on the information presently available.

8. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant can satisfy the criteria for the grant of the visa and in particular, the requirement that the applicant has appropriate qualifications and experience to undertake religious work or activities.[1]

    [1] CL 482.223(d)

11. The Tribunal has available for consideration extracts from the Department’s file, the Tribunal’s file, Department Policy, the Act and the Regulations, court decisions and public information generally available from the Internet.

    ‘Religious worker’ requirements

12. The various clauses set out in Subdivision 408.22 of Schedule 2 to the Regulations represent alternative pathways to the grant of the visa. One of these clauses must apply to the applicant for the applicant to meet cl 408.219A, which is an essential requirement for the visa. In this case, the applicant seeks to satisfy the ‘Religious worker’ requirements in cl 408.223. The applicant has not claimed to meet any of the alternative requirements in the other clauses.

    Background information

13. The applicant’s sponsor is a registered charity with the Australian Charities and Not-for-profit’s Commission (ACNC). The charity operates in South Australia and according to the ACNC operates two Sikh temples and holds cultural and sports carnivals.

14. The application lodged 8 July 2019 asks for a stay of ‘over 12 months from 9 July 2019 to 8 July 2021’, which period has now expired. Unfortunately, there is no available information as to what the applicant has been doing in the interval since lodgement of the application in 2019. It appears from the application that up until the date of lodgment in 2019, the applicant was working in the healthcare industry in Sydney.

15. The application states that the applicant will work in the position described as “Society Pastoral Worker” under the ANZSCO occupation grouping for Community and Personal Service Workers. The application states the sponsor requires a pastoral worker “experienced and qualified in multiple disciplines. Including servicing the youth; the disadvantaged; the elderly; to understand and respect the linguistic cultural diversity of the membership (of the sponsor) and of its backbone in relation to the Sikhism faith.” The work is said to be performed by the applicant in South Australia.

16. The application provides details of an employment history by the applicant as a community support worker with “Quality Care Nursing Agency” in Sydney, in the period from 11 October 2011 to 24 June 2019. The applicant’s work is described as working with “community groups/welfare organisations/government bodies/address all related community issues of society/initiate collective solutions/assess natural extent of difficulties/maintain reports/organise appointments of needs/implement behavioural intervention/identify client’s goals objectives”.

17. The application includes a reference from Quality Care as the applicant’s employer dated 23 April 2019, which states the applicant has been employed by that agency as a casual part-time Assistant in Nursing (AIN) from 20 October 2011 to 5 July 2015 , and then as a full-time community worker from 13 July 2015 to April 2019. The reference letter indicates the work has been carried out at an address in West Ryde,Sydney, New South Wales.

18. The applicant has provided a detailed resume which discloses the applicant holds several qualifications including an Advanced Diploma of Management, and a Certificate III  in Aged care. The applicant obtained a Diploma of Community Services Work on 30 September 2014 in accordance with a community services and health training package. She also holds a statement of achievement from the Australian computer Society in respect of completion of a professional year program on 26 October 2013. The program relates to professional competence in computing/ICT.

19. The sponsor provided the applicant with a “Letter of Employment as Community Worker”, extracts from which are included with the application to the Department and which extracts are undated. It states the remuneration will be $46,000 per annum, and require the applicant to perform the position of “Society Worker” and refers to the duties of the position as set out in an attached position description to the letter, which duties’ extract was not included with the submission of the letter.The offer letter was signed by the sponsor as the employer and accepted by the applicant on 5 July 2019.

20. Apart from the Department decision record, no additional information other than what was contained in the extracted Department file was provided to the Tribunal for consideration. There is no information about any religious background of the applicant, any religious activities undertaken by her either personally or for the community, no involvement by the applicant with the Sikh temples in South Australia or that community or what her intentions might be in relation to the religious work intended that she will carry out. As indicated, the proposed duties for her role as a religious worker have not been provided with the submission of the employment letter to the Department.

21. In the applicant’s resume, she states that she is “a well qualified, professional and caring community support worker with a passion for improving quality-of-life of disabled people. I have experience in various aspects of community care provision, from general domestic duties to the comprehensive care plans. I seek a role with a quality service provider where I can continue to help people to reach their goals.” Notably, there is nothing provided in the applicant’s information to the Department which relates to her having acquired experience as a religious worker, and where the applicant has emphasised only her previous experience and qualifications as a community care provider and working in “various aspects of community care provision”.

    Religious activity – cl 408.223(c)

22. Sub-clause 408.223(c) requires that the applicant will be engaged on a full-time basis to work or participate in an activity in Australia that is predominately non-profit in nature and directly serves the religious objectives of the religious institution.

23. The Tribunal has looked carefully at the available information from the Department file, nothing further having been submitted to the Tribunal. In that information, the Tribunal accepts the applicant has been offered a role for a charitable organisation by the sponsor. Details of that role, however, in the form of her duties and responsibilities performing ‘religious work’ have not been provided. The application itself describes the activities under the position details, where the sponsor refers to needing a pastoral worker experienced and qualified in ‘multiple disciplines’. It refers to the worker being able to understand and respect linguistic cultural diversity of the Sikh membership and “of its backbone in relationship to the Sikhism faith”. How it is that the applicant will be involved in such work is not explained.

24. Other than for the descriptions of related occupations in the ANZSCO guide, there is no formal definition in the Act or Regulations of a ‘religious worker’. Department policy provides that religious worker activity provides the opportunity for the temporary entry into Australia of persons who will be full-time religious workers, being work of a devotional nature and to which the applicant has had relevant religious training. It includes providing spiritual leadership, conducting worship and ministering, pastoral care or proselytising. The religious work must be predominately non-profit in nature and must directly serve the sponsoring organisation’s religious objectives. Policy also proposes that the applicant demonstrate a period, usually more than two years, of association with the sponsoring religious institution, or having previously served in a similar capacity in Australia or elsewhere.

25. The Tribunal has had regard to the ANZSCO descriptions for Community and Personal Service Workers, being the activity described in the application[2]. ANZSCO describes the role for workers in this described occupation grouping as assisting health professionals in the provision of patient care, inviting information and support on a range of social welfare matters and providing other services in the areas of aged care and childcare, education support, hospitality, defence, policing and emergency services, security, travel and tourism, fitness, sports and personal services. This activity is not related to that of a religious worker and is more aligned with the activities of workers in the healthcare industry, as already experienced by the applicant and for which she seems eminently well-suited and qualified..

    [2] Department application form generated 8 July 2019 reference number EGOMNQ4D2T at page 12 of 21

26. By comparison, the ANZSCO description for the occupation grouping 4518 for Other Personal Service Workers includes the occupation of Religious Assistant which describes someone who supports a minister of religion or a religious community in performing a variety of religious functions associated with the practice of a religion, including worship, spiritual guidance, pastoral care and teaching. The grouping includes pastoral workers. The other ANZSCO occupation grouping is for Ministers of Religion 2722 itself, which requires formal qualifications or experience, describing the role of the Minister as performing spiritual functions associated with beliefs and practices of religious faiths, providing motivation, guidance and training in religious life for the people of congregations and parishes and the wider community.

27. The Tribunal finds that there is no information available to demonstrate that the applicant has any religious training or prior experience as a religious worker.

28. The Tribunal has been unable to align the proposed activity for the applicant doing “religious work”, with her proposed position as a “Society Pastoral Worker”. The description of the duties and activities in the Department application, in the Tribunal’s view, align more closely with her background and experience in the health industry and working as a community and personal service worker with the elderly and in aged care, not in a religious assistant role or carrying out religious work. The Tribunal can accept that the applicant is an adherent of the Sikh faith, but there is nothing in the available information to link that belief with work to be performed or carried out in a role as a religious worker for the sponsor. The application itself talks about the applicant carrying out her duties “in multiple disciplines”.

29. There is no information available to demonstrate whether the applicant has had any prior experience or background in association with the sponsor. There is no evidence for example that the applicant has worked previously as a religious worker, or with the sponsor, or in association with the sponsor as regards the Sikh faith or in administering to adherents of the faith in a religious role.

30. The Tribunal finds that the applicant is well qualified in her roles as described in her resume from working in the aged care and health industry providing professional and caring support. These roles however are not associated with religious work or associated with performing work specifically for the Sikh faith. On the available information, the Tribunal finds the applicant has no experience or background at all as a worker in religious activity for the Sikh faith.

31. The Tribunal finds therefore that on the basis of the available information and in the absence of any additional information, for the reasons set out above, that it is not satisfied that the applicant will be involved in religious activity of the kind anticipated for ‘religious work’in the application.

32. For these reasons, the Tribunal is not satisfied that the requirements of cl 408.223(c) are met.

    Qualifications and experience – cl 408.223(d)

33. Sub-clause 408.223(d) requires that the applicant has appropriate qualifications and experience to undertake the proposed work or activity.

34. The Tribunal does not repeat here all the evidence as set out above concerning the applicant’s background, qualifications and experience. As indicated, the Tribunal accepts that the applicant is well-qualified in the field of aged healthcare and the provision of related services, and experienced from her engagement as an assistant in nursing for a nursing agency in Sydney over several years.

35. The Tribunal finds however on the available information that the applicant does not have the qualifications or experience for a religious worker, in the position described by the sponsor in the application as a ‘society pastoral worker’, for promoting the understanding and respect for the linguistic cultural diversity of the sponsor’s membership in relation to the Sikhism faith. The Tribunal finds the applicant has no experience in that regard and there is no evidence of any connection between the applicant and the sponsor either in terms of past or present experience, training, or background, or the applicant’s knowledge and belief in the Sikh faith and her ability to undertake the role envisaged as a’ religious worker’, and what that role may entail.

36. For these reasons, the Tribunal is not satisfied that the requirements of cl 408.223(d) are met.

37. In light of the above findings, the Tribunal is not satisfied that cl 408.223 applies to the applicant.

38. Accordingly, cl 408.219A is not met.

    Secondary applicants

39. Clause 408.311 of schedule 2 to the Regulations requires that the secondary applicants are members of the family unit of a person (the primary applicant) who holds a Subclass 408 (Temporary Activity) visa.

40. As the primary applicant is not the holder of a Subclass 408 (Temporary Activity) visa, the secondary applicants cannot meet the requirement and clause 408.311 is not met.

    Conclusion

41. As two of the essential requirements for the visa are not met, the decision under review must be affirmed.

    DECISION

42. The Tribunal affirms the decisions not to grant the visa applicants Temporary Activity (Class GG) visas.

    Alan McMurran
    Member