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 documents:
·The application for the temporary activity visa claiming that the activity to be undertaken is religious work for Christ Preachers’ Church International. The position is stated as Minister of Cultivating Cultual Music Instruments under the occupation grouping of “community and personal services workers and refers to the ANZSCO occupation as a religious assistant.The application claims that the applicant has worked in the role from 2014-2018. The salary proposed is $41,250 pa. It also stated that the applicant did not intend to be in a classroom situation for more than 3 months. However, the Tribunal notes that the applicant undertook studies in IT not mentioned in the application.
·Employment contract between Church Preachers Church International and the applicant, signed and dated 29 October 2018. The foot of the document states that the agreement is fixed ongoing permanent employment. and dated 22 October 2018 and under that the date 16/9/18 appears. However the Tribunal notes that the application is for a temporary visa. The employer is described as Christian Family Centre Inc. The salary offered is $41,250.50 per annum for 5 days work a week with additional ministry expenses and superannuation and workcover. The role to be undertaken is not described;
·CV of the applicant stating that the applicant has undertaken the courses mentioned above. The employment history states that the applicant has worked as a religious worker for the Christ Preachers church International from 2003 to date. Evidence that the nominee has been employed for this length of time was not submitted;
·Letter dated 29/10/18 from the church to the applicant offering the applicant employment in the position of Minister of Cultivating Religious Musical Instruments and Sounds commencing on 29/10/18 on a rate of $18.93 per hour-$38,784.72 and signed by the applicant 29/10/18. Attached was a document entitled Minister of Music-Job Description to create an atmosphere of worship and reverence to God by playing culture, traditional and universal instruments for all worship services. Lead and direct the Church music program to include choir(s) vocal, instrumental and other phases/expressions of musical experience. Foster an innovative, blended style of our culture worship music to enhance and support the worship message goals. The duties as:
-    Provide professional, inspiring, innovative and motivational music through culture and traditional instrumentals, during all worship services and Christ Preachers Church International programs/events;
-    Lead the congregation, utilizing a variety of culture styles of music, including coaching for new songs unfamiliar to the congregation in the articulate manner of our cultural worship sounds;
-    Spread vitality and engage the congregation through the cultivating usage of cultural and teditional msical instrumental and sounds of worship musical workshop experience;
-    Help bridge generational/cultural differences by selecting a balance of musical playing styles fo every service which will, as a whole, have multi-generational appeal, mostly our cultural sounds and musical for tour Spiritual growth and by briefly presenting the spiritual context of all music playing special piece and many different culture songs for all our culture conferences, events and special services;
-    Assist in developing opportunities for Youth involvement in playing culture piece using both cultural and universal instrumental to engage the church audience;
-    Plan organise and lead the music instrumental ministry;
-    Lead and direct the various components of the music programs including the choir(s), vocal, instruments and other expressions of musical experience using the mixer board to cultivate our worship experience;
-    Teach, coach and mentor all music ministry in the playing instruments and cultivating of culture songs, and special way to play instrumentals to create atmosphere of worship as custom to the Church Culture. Teach the instrumental ministry and worship ministry both in parallel to become learners with respect to our culture, traditional and special religious music styles, sounds and gaps to train teams in playing and growing their musical talents as well as their spiritual development;
-    Mentor and coach interested members to become experience with playing instrumentals, we know off course how long it may take as our styles and musical of worship are different;
-    Promote fellowship within and help recruit new volunteers into the instrumental music ministry;
-    Practice discipleship through inspiring and engaging the instrumental music ministry and workshop Ministry
`The document states that part of the qualifications require “traditional religious Instrumental Music background of high experience and teaching ability sufficient to coach and guide all the members of the music ministry to continually enhance their instrumental skills” . There is an attached chart as to hours but insufficient detail as to what tasks are performed.
·Open letter undated from the Church stating that the applicant was “eager to pusue further training program in Pastoral Ministry. The Tribunal notes that the applicant abandoned theology studies to pursue studies in Information Technology.
·Letter from the Department dated 10/7/18 to the Christ Preachers’Church International approving their sponsorship of a temporary activities sponsor
On 8 September 2021 the Tribunal wrote to the applicant’ agent as listed on the review application, seeking updated and current information in support of the review application. A written response was required by 22 September 2021.
On 21 September 2021 the Tribunal received the following documents:
·Statutory declaration of the applicant declared 21/9/21 declaring that he has been working as a Religious worker as the Minister of Cultural Music Instruments and also as an IT technician to Christ Preacher’s Church International in NSW. He declared that he helps the community understand how to use online systems such as email and assists the Church in configuring networks and online databases, marketing, church management software and administrative tasks and teaching religious music to disciples including youth and children in the church. Evidence of the outcome of this claim was not provided;
·open letter from the Church dated 17/9/21 stating that the applicant is employed as the Minister of Cultivating Culture Music Instrument and “also a IT technician personnel in the area of religious worker”. The Tribunal notes that the tasks listed in the contract of employment make no mention of the provision of IT services.
·bundle of photos indicating that the applicant is teaching IT;
·bundle of photographs (same as sent to department) to show musical tasks- no updated details were provided;
·letter dated 16/9/21 from the applicant to the Tribunal stating that he came to Australia to study theology and due to English difficulties enrolled in TAFE course to prepare and commenced the theology course but struggled and therefore changed course and studied it which has become a vehicle for church growth.
On 18 January 2021 the agent for the applicant sent submissions to the Tribunal with further documents. In the submission the agent stated that the applicant arrived in Australia under a student visa to study theology but did not meet the English proficiency requirement of point 6 and so enrolled in TAFE to prepare for the theology course. Once completed in 2014 he commenced the theology course but his English skills meant that he struggled and so changed to IT and remained studying under the student visa subclass 500 granted on 6/10/17. He then completed the IT course in 2017-2019 and now assists African migrants with IT. Therefore at the time of the application the applicant was performing IT instruction but did not mention this in the application. The submission states that he was engaged about 3 years ago and that he now states that whilst he denied that he had any dependents in the application that he in fact has a 12 year old son and will therefore return to his country when the visa expires. Attached were the following:
-    Statutory declaration of the applicant declared on 17/1/22 confirming that he is engaged and has a son;
-    Open letter from Pastor Simon Gyamfi describing the nominee as the main drummer, plays lead and bass guitar, a repairer of instruments, drives the mini bus to collect members;
-    Open letter form Seth Osei Agyemang Bempah, a paster of the Church dated 14./1/22, advising that he has known the nominee for 6 years describing the nominee as a role models for children;
-    Open letter form Jonathan Adu, Youth President of the Church dated 14./1/22, claiming that the nominee oversees teaching of musical instruments and uses teaching time to preach;
-    Open letter form Faustina Adu, Sunday school teacher of the Church dated 10/1/22 claiming that the nominee operated online Sunday school;
-    Letter to the Department from Yiabari James A-Une, Secretary of Mens Fellowship at the Church stating that the nominee is integral member of the Mens Fellowship as a member of the church choir;
-    Open and undated letter from Mary Ankomah, a member of the church, stating that she has known the nominee for 3 years and has assisted her with computer classes and has benefited older church members
-    Bundle of photographs.
The ANZSCO code 451816 for a religious assistant states that they support Ministers of Religion or a religious community in performing a variety of religious functions associated with the practise of a religion, including worship, spiritual guidance, pastoral care and teaching with a skill level 4 which requires a Cert. II or III or 1 year experience on the job. Reference to the teaching of computer skills for general use does not form part of the ANZSCO task description as it is not a religious function.
The applicant appeared before the Tribunal on 25 January 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Ghanaian and English languages. The hearing was conducted by telephone, without objection, due to the effects of the COVID-19 pandemic.
The applicant was represented in relation to the review.
At the hearing the applicant stated that he, in relation to his employment, teaches youth of the Church, how to pray, performs preaching and evangelical tasks to spread the word of the Church, teaches the church congregation computer literacy and comprehending English. He described his week as working 8am -5pm on Mondays,Tuesdays and Thursdays and on Wednesdays, Fridays and Sundays he works from 7pm-about 7.30pm. The applicant stated that he was available for extra tasks as they arose and in particular on Sundays he worked extra hours setting up for musical performance. He stated that he prepared his own roster as to when he worked. The applicant was uncertain as to what he earned and the contents of his employment contract and suggested that the Church could provide comment on these issues.
The applicant further stated that he did not complete theology studies and transferred to undertake I.T. studies in 2017 and has worked for the Church since that time in providing IT services to the Church and the congregation. The Tribunal asked why these tasks were not included in the application or employment documents given that the applicant was already undertaking those tasks. The applicant stated that his brother, Simon, is a paster in the Church and prepared the documents on his behalf. He then confirmed that Simon was the person who told him what tasks to perform and when. Following the delegate’s decision the applicant stated that he advised the Department that he was performing IT tasks as well and had family members not previously disclosed. The applicant stated that he is engaged and has a son.
The applicant could not comment on the discrepancies of pay and tasks and the roster in the employment contract and letter of offer dated on the same date. He also stated that he was first paid on 16/11/18. The Tribunal asked how his salary was calculared as his services as an IT person would require a relevant pay. He could not say and was happy to be paid what he was. The Tribunal also inquired as to the training the applicant has undertaken to teach, coach ot instruct in music or theology, given that the proposed theology course was abandoned. He stated that he discontinued the theology course as he was not sufficiently learned to pursue it and his English skills were inadequate. The nominee provided no information as to teaching skills obtained other than on the job. , save for the testimonials provided and referred to above. The Tribunal allowed the applicant until 28/2/22 to provide any further material upon which to rely for the purposes of the review application. On 25 February 2022 the agent requested an extension of time in which to comply which was granted so that documents were required by 25 March 2022.
On 24 March 2021 the agent for the applicant provided further submissions to the Tribunal together with with the following documents:
·Allianz Care receipt issued to the applicant stating payment was received 28/3/22 (4 days after this letter was sent to the Tribunal);
·Statuory declaration of the applicant declared 23/3/22 declaring that his music skills have been gained by practical experience from senior musicians and perform his music in the Church and in music competition events in “my country”. He also confirms that his IT computer teaching to church members and the young in the church is an extra voluntary activity as requested by the church without extra payment-“In return, the church gives more money as bonus for this my activity”. The applicant declares that he recently lodged an income tax return showing gross payments of $47,685 . He declared that during 22/2/19 payments ceased as his employment was suspended due to the department’s decision and that the church paid for living expenses and accommodation during this time and that the church transferred $8,853.88 into his account. The applicant described his work as
(a) Preaching bible/God to the disciples
(b) Teaching how to play music indtrument and music playing
(c) Engineering the sounds, the speakers, music equipment
(d) Taking the disciples to the church and returning them home
(e) Helping the church repair things damaged to the building
(f) Repairing music equipment
(g) Doing the cleaning and tidying things for the church every Saturday
The applicant states that he reports to Seth pastor (his brother);
·Commonwealth bank statements of the applicant from 6/2/22-17/3/22 showing weekly payments from the church of $747.20 (if paid over 52 weeks amounts to $38,854.40) and notes an amount received of $8853.87 as a cash deposit on 23/2/22 with a hand written note stating Dec 18 June 20 (with no further explanation)
In the submissions the agent submits that the applicant “has many duties listed in his Statutory Declaration as requested by the church; and that such activities can be included to his religious work even though it is not listed in the employment contact.”. Reference is made to the decision record for 0901101[2010] MRTA 1193(22 October 2021) in which full time employment does not mean that the employment be exclusively in the activity for which the person is sponsored and that sponsorship should relate to the work that represents the main purpose for which the person is being sponsored and that other duties may be undertaken to make up full time employment. Reference is also made to case 1410313 (Migration) [2016] AATA 3191(8February 2016) which referred to the evidence of a fellow monk in that matter that the applicant was required to set up microphones and other technical equipment for Temple operations as fellow monks were aging.The findings in this reference were not submitted.
On 7 April 2022 the agent for the applicant submitted to the Tribunal a notice of assessment from the Australian Taxation Office (ATO) for the year ending 2020 which stated that the applicant’s taxable income was $5,913 and for the year ending 2019 the applicant;’s taxable income was $17,397. An explanation as to why the applicant was not receiving the contracted salary or how this amount was calculated was not provided.
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.
The agent’s submissions suggest that the the applicant does not need to work exclusively in the role identified as the basis for the application, however, it is required that the applicant be performing tasks that support Ministers of Religion or a religious community in performing a variety of religious functions associated with the practise of a religion, including worship, spiritual guidance, pastoral care and teaching. The evidence allegedly supporting the claim that the applicant is teaching music consists of the evidence of the nominee, historic photographs and the comments made by Johnathan Adu and the nominee’s brother Pastor Simon Gyamfi. There is no evidence before the Tribunal that the nominee has obtained any formal teaching training to teach music or preach or mentor youth in an official capacity. The evidence of training is that in I.T. skills and not as an I.T. teacher.
The Tribunal is therefore not persuaded, on the material before it, that the nominee intends to comply with the condition of the visa by maintaining participation in the activity, the subject of the application being that of a religious assistant supporting Ministers of Religion or a religious community in performing a variety of religious functions associated with the practise of a religion, including worship, spiritual guidance, pastoral care and teaching. The teaching of I.T. has not been demonstrated to be the performance of a religious function associated with the practice of religion.
The Tribunal has also considered all other relevant matters (cl 408.213(c)). The applicant having only recently disclosed the existence of a son and a fiancé has declared that they are the reason that his stay is intended to be temporary. However, the Tribunal notes that the applicant has been in Australia since 2014 and has not previously returned to visit his son, the head pastor of the Church is his brother and the employment contract states that the employment is permanent and not short term.
Whilst there is material to suggect that the applicant is from time to time assisting in preaching, teaching music and generally helping out at the Church, the nature of the roles that the applicant is performing, the failure to declare the existence of his son in the application or visit him since 2014, the information provided recently that the person to whom he reports is his brother suggests that a migration outcome is sought that is not consistent with the requirements of the visa. The Tribunal does not have before it evidence that the applicant has sufficient skills to perform the role of teacher given that he abandoned his theology training and has no formal credentiasl to teach youth in any capacity other than his own skills achieved by observation. Doubt is therefore cast on the reliability of his claim that he intends to stay on a temporary basis in Australia for the purpose for which the visa would be granted.
For the above 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 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.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.
Danielle Galvin
Member