GYAMFI (Migration) - [2022] AATA 866

GYAMFI (Migration) [2022] AATA 866 (11 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Matthew GYAMFI
REPRESENTATIVE:  Mr Kevin Trinh (MARN: 9905480)
CASE NUMBER:  1904796
HOME AFFAIRS REFERENCE(S):          BCC2018/5552742
MEMBER:Danielle Galvin
DATE:11 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Activity (Class GG) visa.
Statement made on 11 April 2022 at 2:10pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – necessary skills and genuine temporary stay for purposes of visa – nominee’s background in information technology significantly different from nominated position of church music minister – no evidence of qualifications in music or teaching and non-completion of theology course – current tasks include music, IT and general duties – no mention of IT or other tasks in nominee’s position description or ANZSCO occupation description – tax assessment shows very low income with no explanation provided – applicant is church pastor’s brother – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 408.213
CASES
0901101 [2010] MRTA 1193
1410313 (Migration) [2016] AATA 3191
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 12 February 2019 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, Matthew Gyamfi, applied for the Temporary Activity (class GG) Temporary activity (subclass 408) visa on 10 December 2018 on the basis that he was to perform religious work for Christ Preachers’ Church International.
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). 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 they were not satisfied that the applicant had the neccessary skills and/or is genuinely intending a temporary stay in Australia to undertake activities for which the visa is granted. The delegate found, that the applicant’s qualifications and competencies and employment background is significantly inconsistent with the supported activities. Reference was made to the applicant’s curriculum vitae which refers to a diploma and advanced diploma in information technology obtained from Pacific College from 2017-2019 and a course in advanced English at TAFE for further study in 2014. The delegate found that 3 consecutive student visas were for the primary pathway of information technology and as a consequence the delegate concluded that the intended activity in Australia is inconsistent with that of a genuine Religious worker.
The department’s file contained the following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GYAMFI (Migration) [2022] AATA 866
Case: [2022] AATA 866
Decision Date: 11 April 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Temporary Activity (Class GG) visa, Subclass 408 (Temporary Activity), made by an applicant seeking to work as a religious assistant. The applicant's brother, a church pastor, was the nominator. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically concerning the genuine temporary stay requirement and the nature of the nominated position.

The central legal issue was whether the applicant genuinely intended to stay temporarily in Australia for the purpose of being a religious assistant, as required by clause 408.213 of the Migration Regulations. This assessment involved considering whether the applicant had complied with the conditions of any previous visas and whether they intended to comply with the conditions of the Subclass 408 visa. The Tribunal also had to consider whether the nominated position aligned with the applicant's skills and the relevant occupation descriptions.

The Tribunal found that the applicant's background in information technology was significantly different from the nominated position of church music minister. There was a lack of evidence demonstrating qualifications in music or teaching, or completion of a theology course. While the applicant claimed to perform music, IT, and general duties, the IT and other tasks were not mentioned in the position description or the relevant ANZSCO occupation description. Furthermore, the applicant's tax assessment showed very low income without explanation, and inconsistencies arose regarding whether IT lessons were voluntary or part of paid employment. The Tribunal concluded that the role appeared to be that of a general assistant rather than a religious assistant as described in the ANZSCO code.

Consequently, as one of the essential requirements for the visa was not met, the Tribunal affirmed the decision not to grant the applicant a Temporary Activity (Class GG) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 whether the applicant satisfies the criteria of cl.408.213 of the Regulations.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 being a religious assistant. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must 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)). 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)). Additionally, for visas granted on the basis that the entertainment clause applies, the visa would be subject to condition 8109 (time / place of engagements must not change) (cl 408.611(b)). The Tribunal does not have evidence before it that the applicant has failed to comply with conditions of any previously held visa. However, the applicant was not forthcoming in their application as to the tasks he was performing in relation to Information Technology (IT) instruction at the time of the application, nor did he advise the Department at that time of the existence of his son. Whilst purporting to study theology the applicant changed courses to that of IT and has utilised historic student visas for the purpose of gaining IT skills. The applicant gave oral evidence, supported by statutory declaration, that he performed the role as an IT instructor for the church community. However, the applicant was vague in providing a persuasive breakdown of the tasks to be performed and gave general evidence about the other tasks he allegedly performs. Historic photographs were not supported by other evidence that he preaches, escorts disciples to and from the church, repairs equipment or tidies up, save for the testimonials referred to above. The contract tasks focus on musical instruction, however, the evidence of the applicant as to the tasks he performs suggests that he has been engaged on an ad hoc, as need arises, basis. The testimonial refer to the provision of musical and religious instruction and the provision of I.T lessons. The nominee stated that he provided I.T. lessons voluntarily but then referred to a bonus paid. This information was inconsistent with the information in the statutory declaration made by the nominee including I.T. as part of his employment. The role he is performing is therefore not consistent with the role described in the contract of employment. The role appears to be that of a general assistant, albeit in a church setting, rather than that of a religious assistant performing tasks detailed in the ANZSCO code . This is supported by the comments of Mary Ankomah that the I.T. training assisted her in job applications and shopping, no reference being made to a religious function or activity.

Decision

Reasons for decision

As one of the essential requirements for the visa is not met, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.Danielle GalvinMember

Ratio Decidendi

Legal Principle Established

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