Fernandopulle (Migration)

[2022] AATA 4864

Fernandopulle (Migration) [2022] AATA 4864 (19 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Denver Joachim Fernandopulle
Mrs Edna Romayne Fernandopulle
Mr Dilakshan Jonathan Reginald Fernandopulle

REPRESENTATIVE:  Mr James Chung

CASE NUMBER:  1912905

HOME AFFAIRS REFERENCE(S):          BCC2019/1678655

MEMBER:Alan McMurran

DATE:19 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 19 August 2022 at 3:34pm

CATCHWORDS  
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Religious Worker stream – genuine temporary entrant – visa history – Department policy – combined length of stay – opportunity train and find a successor – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), s 65 
Migration Regulations 1994 (Cth), Schedule 2, cls 408.213, 408.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 23 April 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 9 May 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, Mr Denver Joachim Fernandopulle (“the applicant”) is a 56 year old citizen of Sri Lanka, who has applied for a Subclass 408 Temporary Activity visa in the Religious Worker stream, to work for the sponsor, Influence Church Incorporated (“ the sponsor”). The second and third-named applicants, respectively, are the spouse and son of the applicant (“secondary applicants”) and all are members of the applicant’s family unit. The secondary visa applicants are dependent upon the grant of the applicant’s visa for approval for their own visas.

3. The applicants applied for the visas on 4 April 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 of the alternative clauses set out in Subdivision 408.22.

4. The delegate in this case refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy common criteria cl 408.213(c) of Schedule 2 to the Regulations, that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, because the delegate found that the visa applicant had been granted four prior Religious Worker visas, over a period exceeding 4 years in total, and that the visa program was not designed or intended for visa holders to remain in Australia for extended periods.

5. The delegate found that the applicant’s visa history was a relevant matter in considering the visa applicant’s further proposed stay, and which the delegate found would be contrary to the intention of the visa program, which is not intended to enable visa holders to remain in Australia for extended periods. As a consequence, this further visa application for the same occupation was refused.

6. The applicant appeared before the Tribunal on 16 August 2022 to give evidence and present arguments. The hearing was conducted by telephone in accordance with the Tribunal’s decision for the matter to be conducted efficiently, and in accordance with its statutory objective to provide a mechanism of review that is fair, just, economical, informal, and quick. The secondary applicants did not attend the hearing. The applicant was asked if he was ready to proceed by telephone, which he agreed. No objection was taken to the format of the proceedings, and when asked, the applicant did not seek any adjournment or deferral for the purpose of providing additional information.

7. The applicants were represented in relation to the review by a migration lawyer, who did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The applicant must meet all the criteria for the visa to be granted.

10. The Tribunal has available for consideration extracts from the Department’s file, the Tribunal’s file, including written submissions from the applicant, and the evidence from the nominee at the hearing. The Tribunal also has regard to Department Policy, the Act and the Regulations, and public information generally available from the Internet.

    Genuine intention to stay temporarily – cl 408.213

11. 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.

12. 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.

    Background

13. In the present case, the applicant seeks the visa for the purpose of working as a trained Pastor and counsellor for the Influence Church Incorporated (“the sponsor”). The sponsor has provided the applicant with an employment contract, signed by the parties and dated 3 April 2019. A copy of the employment agreement has been produced.

14. The sponsor is a registered charity since 20 October 2009 and recorded with the Australian Charities and Not-for-Profit’s Commission (“ACNC”) and having legitimate charitable status. The sponsor operates from three suburban premises in Sydney at Campbelltown, Blacktown, and Ryde.

15. According to the ACNC available information, the sponsor derives its revenue from donations and bequests and in 2021, recorded total revenue of $241,410 against expenses of $221,527. According to the application, there are no full-time employees, three casual employees and three volunteers. Responsible persons for the sponsor organisation include a secretary (Amrit Prasad), Chairperson (Andrew Periasamy) and Board member (Robert Boaza).

16. The applicant submitted a written statement made 8 August 2022, which he confirmed at the hearing was true and correct. The statement in full summarises his background and reads as follows:

    “I first arrived to Australia in July 2010 on a student visa. I was studying psychological counselling and completed this course up to the graduate diploma qualification.

    In 11/2014 I was sponsored by the C3 church in Toongabbie to stay in Australia to work as a pastor at their church.

    I was granted a religious worker visa and worked with his church until 2019. In 2019 I ceased working with C3 church as their financial situation was not good and they were not able to keep me. I was with this sponsor for 5 years.

    In 4/2019 I was approached by the Influence church to work for them. I lodge in an application but unfortunately it was refused because the Department stated that I was not able to satisfy the ‘genuine intention to stay in Australia temporarily to work as a religious worker’as I have been in Australia on a religious worker visa since 2014.

    I understand that the subclass 408 visa has a limitation on how long I can stay in Australia. However I have been with the current sponsor since 2019. I have been working at the Blacktown branch of the church which is conducted in the singular Srilankan language. All the other branches of the Influence church at Ryde, Campbelltown is conducted in English. 80% of the congregation at Blacktown branch are from the C3 church people who have followed me to the Influence church. All of these people have been with me since 2014. The Blacktown branch has been built up by myself.

    The church is now growing and it needs me to continue the service which is highly specialised. I believe I have a calling and the skills to continue with the current position as a Pastor with the Influence church. I am hoping to be able to stay in Australia for the next two years so that I can adequately train a younger Pastor to take my position. When Influence church sponsored me to work with them it was only intended to be until the year 2021. However Covid 19 disrupted all plans for the church. The extended lockdown has affected everyone and the church is no exemption. It is just now that the church is back on its feet and worship have started to get back to normal.

    I sincerely hope to only remain in Australia until 2024 to get everything in order for the I’s nfluence church, to continue helping the congregation and to train a new Pastor. I confirm my intention is to only remain in Australia on a temporary basis. My wife and I intend to stay in Australia until 2024 then return to Sri Lanka to provide ministry there. If it is my calling to return to Australia after 2024 then I will consider the option but at the moment I just needed some more time to work with my current sponsor and the congregation.”

17. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the stated and nominated purpose, the Tribunal must also consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 408.213(a)).

18. There is no issue arising in this particular case concerning the applicant’s substantial compliance with conditions applying to his last substantive visa, or any subsequent bridging visa, or whether he intends to comply with the conditions to which a further subclass 408 visa would be subject (cl 408.213(b)).There is however an issue as to whether the applicant genuinely intends to stay, and arising from ‘other relevant’ matters as per the requirement of cl. 408.213 (c), considered below. The phrase, ‘other relevant matters’ is not defined and potentially there may be a number of relevant considerations, depending upon the particular case.

    Consideration

19. The applicant’s visa history in this case is an important consideration and because of the existing length of extended stays, previously granted to the applicant, immediately raises a question as to whether a further stay is appropriate, given the intention of the visa program.

    Visa history

20. In his home country, Sri Lanka, the applicant has a background in social work and counselling and voluntary religious work. The available information from the Department records shows that the applicant was granted a student visa on 5 July 2010 when he came to Australia to study for further qualifications in the counselling profession.

21. The applicant obtained a Diploma of Community Services from the Carrick Institute of education in Sydney on 23 December 2011. The applicant then studied for an Associate Degree in Social Science, specialising in counselling, from the Tabor College Inc which he obtained on 12 July 2013. He then obtained a Graduate Diploma of Counselling from Excelsior College in Sydney on 7 May 2016.

22. The applicant was granted his first Religious Worker visa on 3 November 2014 and which ceased on 8 August 2016. The applicant’s second visa was granted on 29 October 2016, which ceased on 1 September 2017. The applicant’s third Religious Worker visa was granted on 5 October 2017 and ceased on 30 September 2018.

23. A fourth Religious Worker visa was granted for a short stay only, for the period from 9 October 2018 until 9 May 2019. His fifth visa application for the same occupation was made on 4 April 2019 and refused by the Department on 9 May 2019, and which is now the decision under review.

24. The applicant concedes that he has been working as a Religious Worker continuously throughout the period from November 2014 up until the time of decision (August 2022), a total of almost 8 years. The applicant has incorporated his professional training as a counsellor in that work.

    The hearing

25. The Tribunal discussed the applicant’s extended period on the temporary visa program with the applicant at the hearing. The applicant confirmed the matters set out in his written statement (above) and the Tribunal accepts that evidence.

26. The Tribunal asked the applicant about his current activity. The applicant said that his services are now “highly specialised” within the church, because his congregation is almost entirely Sinhalese. He said they comprise many Sri Lankan migrants from a variety of cultural and religious backgrounds, and who are now Christians converted from variously Buddhist, Hindu, and Islamic faiths. He said their cultural and historical backgrounds are extensive and complex, and they require as their Pastor, a religious leader who is knowledgeable and familiar with their background and language.

27. He said that he is developing and growing the church branch in Blacktown, performs religious services there, and where he also provides counselling services free of charge, spending considerable time with the congregants in their homes.

28. He was asked how he came to be offered the position by the sponsor. He said he was introduced to them after he left the C3 Toongabbie church, which he said had not delivered on promises to assist him. He was personally dissatisfied and disappointed and was introduced to ‘Pastor Andrew’ of the sponsor’s church, through another congregant. He was almost immediately offered a position as a pastor, because of his personal difficulties arising from his disappointments with C3, and then supporting himself and finding suitable work. He said he was also then able to offer the sponsor a new congregation which had wanted to follow him from C3 Toongabbie, after he left. He said the sponsor found available premises for the applicant to conduct services, leasing a Baptist church location at Blacktown, and which he said currently hosts 60 or 70 people for the Sunday services. He said these services have now started to resume more regularly following the pandemic lockdowns, which had slowed support from the sponsor for the new and increased congregation introduced by the applicant, and including being able to train a new Pastor. He said he needs ideally another two years to complete that process.

29. He was asked what would happen to the Blacktown congregation if he leaves. He said there is really no one else to lead the Sinhalese adherents, and he needs to train a group of people who can take over. He said there are language difficulties as English is not their first language and the pastor needs to be able to communicate in Sinhalese. He agreed the sponsor has quite a limited budget, and on the basis of the 2021 financial audit provided by the ACNC on its website, would have difficulty meeting the financial commitment to pay the applicant the agreed salary of $56,000 per annum plus superannuation. The applicant stated that both his son and his wife are in employment, and that he believes the sponsor will meet the financial commitment to support him, notwithstanding its limited budget.

30. He was asked what would happen with his wife and adult son if the visa were not approved. He said his son is now 25 and just finished his degree in sport and exercise science and working as a lifestyle coordinator in aged care. He is engaged to be married early next year. The applicant said his wife is also working in aged care, but will return with him to Sri Lanka. He was asked if returning to Sri Lanka created any problem for the family, and he responded that there is no problem at all with him returning to Sri Lanka, and he and his wife will resume their prior counselling and religious worker activities. He said however, that having been in Australia for more than 10 years and having kept the Sinhalese church community together for the last seven or eight years, it would be difficult for him to leave, where the church has no replacement for him.

31. He told the Tribunal that he would not seek another visa of the same kind if he were granted a further extension. He said even if two years was too long, if it were for only 12 months, that extended period would be sufficient.

32. He explained to the Tribunal that he now believed a mistake was made applying for the visa for the fifth time, and although not trying to apportion any blame or criticism, felt he might have been better advised, being now aware that Department policy does not encourage applications for multiple grants of subclass 408 visas for extended periods. He said he was aware following his last visa experience that the general policy position is not to extend visas for a ‘temporary stay’ for a total period of more than four years. He said he was under the misapprehension, however, that each time a new sponsor or employer invited him to stay, that time for the period of the stay would recommence, and he had only joined the current sponsor in 2019. He told the Tribunal that he realised his understanding was not correct.

33. The applicant was invited to make any further comments or submissions. He asked the Tribunal to exercise its discretion to extend his time in Australia for a further period and for the Department to extend the visa.

34. The Tribunal has noted that the letter to the Tribunal submitted from Dr Selvendran before the hearing, includes 42 signatures from church members supporting the applicant for a further stay in Australia. The submission requests that the applicant be allowed to continue his service in Australia until 2024.

35. At the end of the hearing, the applicant was invited to make any further submissions should he need further time or wish to do so. He confirmed he had provided all the information he wants the Tribunal to consider for its merits review.

    Tribunal findings

36. Department policy is a relevant matter for consideration on review of a visa refusal and in the circumstances of this application. The general policy position is that the Department would not ordinarily grant a further temporary visa that would allow a cumulative stay for an applicant to exceed four years in total.

37. That is a guideline only, and is not dependent upon the applicant working continuously for only one sponsor in that period. It is a cumulative time guideline, and designed to instil integrity into the temporary visa program, whilst at the same time providing some flexibility where, as in this instance, a religious worker who has been previously granted temporary visas may still qualify for a further visa, in particular circumstances, and for a period up to 4 years in total. It is unusual as in the circumstances of this case, for an applicant to have been approved for four temporary visas covering a period of almost eight years in total.

    The applicant’s length of stay

38. In considering this issue, the decision-maker will be guided inevitably by the particular facts and circumstances of the application. The proper exercise of discretion available to a decision-maker in any case may vary widely, according to those facts and circumstances which are established.

39. This is not a case where the Tribunal is being asked to consider a previous stay for some time past or some intermittent period, but rather a continuous period of full-time employment in the same occupation for almost eight years, five of them with one employer, and three of them with the current sponsor. The last granted visa for this purpose for the applicant was deemed to be limited, and to be for a period of approximately six months only.

40. Due to delays in hearing the matter in the review process, the applicant has extended his stay from the time of the Department’s decision in May 2019 for an additional three years. That is to say, the applicant has had a significant opportunity occasioned by this delay, not of his making, to prepare with the new sponsor for his departure, at the end of his temporary stay, and which stay has considerably exceeded the much shorter period granted by the Department in October 2018 and ending on 9 May 2019.

1. The Tribunal has listened carefully to the applicant’s evidence and reviewed the submitted material and has not detected any reason as to why the sponsor and the applicant were unable to identify and train a suitable replacement for the applicant, or find persons from within the local Sinhalese community to take over the role. This is especially so given the applicant’s awareness of the difficulty in having a further temporary visa granted because of the total length of the existing stay by the applicant.

2. No evidence has been provided of the timeline for any proposed training for a replacement, or what that training might involve, or who might be available for the purpose, or what has been done over the past three years and since May 2019, to address this issue, since the temporary stays were first extended beginning in 2016, or what will happen in the additional two years now requested. No evidence or submissions have been provided from the sponsor.

3. The Tribunal finds it is not persuaded on the available information, the evidence submitted, and the applicant’s oral submissions from the hearing, that the Department decision under review should be set aside. The Tribunal considers that the applicant has been given a reasonable opportunity on each occasion to extend his time in Australia as a religious worker under the temporary visa program, and to train and find a successor as thought necessary, and that a further extension is not justified on the available information.

4. That is so, notwithstanding that the Tribunal finds on the available information that the applicant has complied substantially with the conditions to which the last substantive visa was subject (cl.408.213(a)), and that the applicant intends to comply with conditions to which any further temporary 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)).

   Other relevant matters

5. In addition to the combined length of stay, the Tribunal has also considered other relevant matters (cl 408.213(c)). There is no defined list of such matters, which may vary from case to case. This may include factors such as any public or special-interest criteria, personal circumstances affecting the visa applicant and the secondary applicants, including things such as health, family connections and support, any community ties of a special nature or contributions to the community arising from and with the work of the applicant with the sponsor.

6. Policy suggests that other circumstances might include any relevant developments in the applicant’s home country and his employment on return, the family situation, and general circumstances such as economic difficulties or civil unrest. It might also include the applicant’s return vocation and his ability to recommence that role. The applicant’s overall intentions are also relevant, including his statement that he might seek to return to Australia at some later date to resume his religious work and pastoral leadership.

7. When asked, the applicant did not raise any particular issue or express any concern or difficulty about returning to Sri Lanka. On the contrary, the applicant said he would resume what he had been doing previously, involving counselling and a leadership role in his local community looking after their needs and providing guidance for Christian youth. The applicant said he and his wife will take up where they left off before coming to Australia. The applicant did not relate any of the current civil strife in Sri Lanka to his personal or family circumstances and how they might be affected.

8. The applicant said that he and his wife want to return to Sri Lanka as they have family and community ties, but his wish is to not leave his job with the sponsor in Australia unfinished. He said that he felt on returning to Sri Lanka, he and his wife might decide to make a further application to return to Australia in due course, but that he still had work to do at home and he will wait to see what develops after his return. He realised that as he is getting older, he is now 56, it may become more difficult to do so.

9. Listening to the evidence, the Tribunal formed the view that the applicant was not particularly concerned about having to return to his country of origin. He was more concerned about finishing the job as he saw it in Australia.

10. The applicant did not put anything else forward or make any further submissions for the Tribunal to consider as a relevant matter and which might warrant consideration for extension of the period of temporary stay. Nor did he seek additional time to do so.

    Findings

11. The Tribunal found that the applicant has presented as a candid, forthright and truthful witness.The applicant accepts responsibility for his current circumstances and having to leave the sponsor with, in his view, his job not quite completed. He has acknowledged that he has had considerable time and opportunity made available to him to remain in Australia. The applicant clearly articulated the complexities in dealing with a culturally and socio-economically diverse Sinhalese church congregation, which experience for him has been made more difficult by the pandemic, the impact of which has delayed implementation of a plan for the applicant’s succession, and for his family’s return to Sri Lanka.

12. Nonetheless, this Tribunal is of the view that the applicant as a temporary visa holder, and who has carried out the activity of a Religious Worker continuously for a period approaching eight years in total, and in the circumstances as outlined by the applicant, is not able to demonstrate that at the end of that period, he genuinely intends to stay temporarily in Australia for the purpose for which the visa might be granted.

13. Having regard to the periods during which the applicant has already held a substantive visa for the same purpose and occupation, and the additional period sought for a further two years, and taking into account the other relevant matters referred to above, the Tribunal finds it is not satisfied that the applicant genuinely intends to stay temporarily in Australia, his preferred goal being to remain in the country for as long as might become necessary to train and plan for his succession and to minister to the needs of his Sinhalese community.

14. The Tribunal accepts this is a worthwhile objective in itself, but is not the intended goal of the temporary visa scheme. Rather, the visa objective as intended in the case of a religious worker is to carry out full-time religious work for a religious institution in Australia, and for a stay of up to 2 years, not for 10 years as in this case, should a further period be granted as submitted.

15. The Tribunal finds on the available information, that the relevant matters considered do not weigh in favour of a further grant for the visa.

16. For these reasons 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 cl 408.213 is not met.

    Conclusion

17. As one of the essential requirements for the visa is not met, the Tribunal is not required to consider any remaining criteria and the decision under review must be affirmed.

    Secondary applicants

18. Cl.408.311 requires that a secondary applicant is a member of the family unit of the applicant (the primary applicant) who holds a Subclass 408 (Temporary Activity) visa.

19. As the Tribunal has found that the primary applicant at the time of decision does not meet the requisite criteria for the grant of the visa, the secondary applicants cannot satisfy the requirement to be members of the family unit of a primary applicant who does satisfy the criteria. For these reasons, the applications by the secondary applicants cannot succeed, and cl.408.311(a) is not met.

    DECISION

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

    Alan McMurran
    Member