Gyawali (Migration)

[2022] AATA 4694

Gyawali (Migration) [2022] AATA 4694 (12 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Anil Gyawali
Mrs Tara Pokharel Gyawali

REPRESENTATIVE:  David Kenneth Brooks

CASE NUMBER:  1933921

HOME AFFAIRS REFERENCE(S):          BCC2019/5639432

MEMBER:Mary Sheargold

DATE:12 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 visa:

·cl 408.213 of Schedule 2 to the Regulations.

Statement made on 12 December 2022 at 8:04am

CATCHWORDS  
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Religious Worker stream – Hindu priest – genuine temporary entrant – compliance with previous visa conditions – intention to comply with visa conditions – other relevant matters – number of previous temporary activity visas held – time already spent in Australia – labour agreement application – decision under review remitted

LEGISLATION 
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 408.213; Schedule 8, Conditions 8107, 8109, 8303

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 November 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 applicants applied for the visas on 8 November 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.

3. The delegate in this case refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl 408.213 of Schedule 2 to the Regulations because he did not appear to have a genuine intention to remain in Australia temporarily to carry out the activity for which his visa was to be granted, that is, working as a Hindu priest in Sydney.

4. The applicants appeared before the Tribunal on 6 December 2022 by MS Teams video to give evidence and present arguments. The Tribunal also received oral evidence from Suresh Manjunath Bangalore, who is the applicants’ employer.  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the first named applicant meets the requirement in cl.408.213 of Schedule 2 to the Regulations.

   Genuine intention to stay temporarily – cl 408.213

8. 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.

9. In the present case, the applicant seeks the visa for the purpose of religious work.

10. 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)).

11. There is no evidence before the Tribunal to suggest that the applicants have been anything other than fully compliant with the conditions on all previous visas they have held in Australia.  Therefore the Tribunal is satisfied that Mr Gyawali meets the requirement in cl.408.213(a).

12. 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)).

13. Given the passage of time since the application was made and the fact that Mr Gyawali has been continuously engaged in his work as a Hindu priest, the Tribunal is satisfied that Mr Gyawali demonstrates an intention to continue to comply with condition 8107.  Mr Gyawali, again, as a priest, has no history of violent or disruptive conduct and there is no reason for the Tribuna to assume that he would become violent or disruptive in the future.  As such, the Tribunal is satisfied that Mr Gyawali meets the requirements of cl.408.213(b).

14. The Tribunal has also considered all other relevant matters (cl 408.213(c)).  The delegate was reluctant to approve this visa because, at the time the application was refused, the Department’s policy in relation to this subclause was that relevant matters included the number of previous temporary activity visas held by the applicant and the total time the applicant had already spent in Australia participating in that activity. 

15. The policy at the time inferred that the intention behind the Subclass 408 visa was not to allow a holder to remain in Australia on multiple grants for an extended period of time.  The policy stated that if granting the visa would result in an applicant exceeding four years stay in Australia as the holder of a temporary visa, then the period of stay granted in this visa should allow the holder only enough time to apply for another visa subclass, if they are eligible, and to state their intention to do so.

16. In this case, Mr Gyawali and his wife have informed the Tribunal that Mr Gyawali’s current employer wishes to sponsor him for a Subclass 482 visa with the view to then sponsoring the family for permanent residence in due course.  The representative’s and employer’s submissions to the Tribunal prior to the hearing confirm this intended path and note that the only issue delaying the making of a new labour agreement application to the Department for Mr Gyawali is an administrative irregularity with another government Department.  This will be discussed further below.

17. Since the time the application was made, the Department’s policy has relaxed, and new, more explicit wording has been provided to guide applicants in Mr Gyawali’s position.  Now the policy states that if approval of the application would result in an applicant’s stay exceeding 4 years while holding temporary visas, then the period of stay granted should be either enough time to finalise their current assignment and depart, or enough time to make a visa application under the provisions of a pending Labour Agreement.  The policy states that a Labour Agreement Business Case proforma with required supporting documentation must have already been lodged with the Department by the sponsor.  It is worth noting that, at the time this application was made, a labour agreement application had been made in respect of Mr Gyawali by his sponsor.  Ultimately, it was returned, not approved, but this return occurred some 2 weeks after the delegate’s decision was made.

18. In other words, had the Department’s current policy applied at the time the application was made, Mr Gyawali would have met the grounds for a short-term visa to enable him to apply for another visa once the labour agreement was approved.

19. The Tribunal notes that it is not able to make a finding that there is now a labour agreement approval pending with the Department.  This is because the applicant’s sponsor has unfortunately lost its charity status with the Australia Charities and Not-for-profits Commission due to a ‘double default’ in not returning its annual information statement for 2 consecutive years. 

20. At the hearing, Mr Bangalore explained that the ACNC’s requests to complete those AISs had gone to an email address that was no longer monitored by his organisation.  Mr Bangalore told the Tribunal that they have done everything necessary to rectify the situation with the ACNC, and that they have verbal advice from the ACNC that the sponsor’s charity status will be restored before Christmas.  The Tribunal’s most recent consideration of the ACNC Charity Register shows that the sponsor’s status is still listed as ‘Revoked double defaulter’, but notes that it also indicates that the ACNC has taken no enforcement actions against the sponsor.  The administrative process required to re-register the charity has been followed, and it is simply a matter of time until the sponsor’s charity status is regularised.

21. The Tribunal is not bound by the Department’s policy.  In the ordinary course, consideration of Departmental policy would be confined to the policy that applied at the time the application was made.  However, the Tribunal notes that in the present circumstances where Australia is slowly navigating its way out of the Covid-19 pandemic and where our labour shortage is critical in many areas, it may be appropriate to give more emphasis to and consideration of the current policy.  Indeed, it is not unreasonable to assume that the increasing difficulty religious organisations are having in recruiting and retaining certain workers was a motivating factor in the update to the policy.

22. In the Tribunal’s view, applying the current policy gives an explicit opening to find that Mr Gyawali satisfied cl.408.213(c).  In fact, even applying the policy that existed at the time this application was made is sufficiently broadly worded to allow a liberal interpretation that supports a finding that Mr Gyawali meets the criteria because he has an express and clear intention to make a new application, and likely is eligible to do so.

23. The Tribunal is satisfied that Mr Gyawali’s application for this visa will be supported by a pending labour agreement, and as such, it is appropriate to find that he meets the requirements of cl.408.213(c).  In making this finding, the Tribunal is cognisant of its aims to make decisions that are fair, quick, just and economical.  It is expedient to give these applicants every opportunity to remain onshore where Mr Gyawali can continue to provide spiritual guidance to his followers in circumstances where his sponsor can seek to make applications for a more certain future for Mr Gyawali’s family in Australia.

24. For the above reasons the Tribunal is 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 met.

25. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa, including in relation to the secondary applicant.

    DECISION

26. The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·cl 408.213 of Schedule 2 to the Regulations.

    Mary Sheargold
    Member