Gye (Migration)

[2022] AATA 3114

Gye (Migration) [2022] AATA 3114 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Eunjoo Gye

REPRESENTATIVE:  Mr Kevin Chong

CASE NUMBER:  1905418

HOME AFFAIRS REFERENCE(S):          BCC2018/5963696

MEMBER:Nicola Findson

DATE:8 September 2022

PLACE OF DECISION:  Perth

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

·cl 408.223 of Schedule 2 to the Regulations; and

·cl 408.219A of Schedule 2 to the Regulations.

Statement made on 08 September 2022 at 6:31pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – religious work stream – creative and worship pastor – qualifications, skills and experience – no supporting documents provided with visa application – CV and documentary evidence from applicant and sponsor provided to tribunal – sponsorship test – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cls 408.111, 408.219A, 408.223(d)

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 21 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).

2. The applicant applied for the visa on 4 January 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). Applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.

3. The applicant has applied for the visa in the Religious Work stream, sponsored by the Vietnamese Evangelical Church in Australia (VECA). 

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 408.223(d) of Schedule 2 to the Regulations, because there was no supporting documents or information provided in support of the application to satisfy the delegate that the applicant has the appropriate qualifications, skills and experience to undertake Religious Work in Australia.

5. The applicant provided a copy of the delegate’s decision record with the application for review. The applicants were represented in relation to the review by their registered migration agent.

6. On 26 August 2022, in response to a hearing invitation sent by the Tribunal, the applicant provided a comprehensive written submission and supporting documents which have been considered further below.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets the requirements in cl.408.223 for the religious worker stream. The applicant has not claimed to meet any of the alternative requirements in the other clauses.

   ‘Religious worker’ requirements

10. 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.

    Purpose of stay–cl 408.223(a)

11. Sub-clause 408.223(a) requires that the applicant seeks to enter or remain in Australia to provide services as a religious worker.

12. It is claimed by the applicant that she intends to remain in Australia for the purpose of completing her services as a religious worker in the position of a Creative and Worship Pastor for the VECA. 

13. The Tribunal has before it material, including a curriculum vitae and qualification documents, that support the written submission that the applicant has been committed to her religious career and personal journey since commencing her ministry volunteer work in South Korea in 2004.  The material reflects that the applicant has travelled abroad; undertaken relevant studies in the USA and Australia; and performed a range of duties in various roles with the aim to support the growth and development of the religion of Christianity.  VECA Minutes of the National Executive Committee dated 6 August 2019 approving the appointment of the applicant to the Church Pastor Team, and position description documents, confirm that the applicant’s role within the Church includes directing the planning, organising, conducting and evaluating of a comprehensive creative team in music, media and social media activities, and developing and leading the creative team to conduct Sunday and special Church services. The Tribunal is satisfied that the services that will be provided by the applicant are consistent with the principal activities of the sponsoring organisation and fall within the types of tasks performed by religious workers. On the basis of this evidence, the Tribunal is satisfied that the applicant seeks to remain in Australia to provide services as a religious worker.

14. For these reasons, the Tribunal is satisfied that the requirements of cl.408.223(a) are met.

    Invitation–cl 408.223(b)

15. Sub-clause 408.223(b) requires that the applicant has been invited to provide services by a religious institution that is lawfully operating in Australia. ‘Religious institution’ is defined in reg 1.03 to mean a body:

    (a)the activities of which reflect that it is a body instituted for the promotion of a religious object; and

    (b)the beliefs and practices of the members of which constitute a religion due to those members:

    (i)believing in a supernatural being, thing or principle; and

    (ii)accepting the canons of conduct that give effect to that belief, but that do not offend against the ordinary laws; and

    (c)that meets the requirements of section 50–50 of the Income Tax Assessment Act 1997; and

    (d)the income of which is exempt from income tax under section 50–1 of that Act.

16. The applicant has been offered employment by VECA, a registered association in Australia, offering religious services, counselling, and community outreach programs through the Thyme Court Church in Western Australia.  The Tribunal has before it documents in support of VECA’s incorporation, a rental agreement for the Church premises, and documents setting out the mission and service details of the Church.

17. The Tribunal has before it a copy of a Certificate of Exemption issued by the Australian Taxation Office (ATO) on 22 October 1986, in respect of the sponsor. The Tribunal has also received certification from the Australian Charities Not-for-Profits Commission (ACNC) confirming that the organisation is registered as a charity, as well as financial documents relating to the Church.

18. On the basis of the material before it, the Tribunal is satisfied that the organisation which invited the applicant to provide religious services is a ‘religious institution’ as defined in r.1.03.

19. For these reasons, the Tribunal is satisfied that the requirements of cl.408.223(b) are met.

    Religious activity – cl 408.223(c)

20. 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.

21. The Tribunal has considered the Contracts of Employment signed on 3 December 2018 and 15 August 2022, between VECA and the applicant, as well as material relating to the position description for a VECA Creative and Worship Pastor, and the applicant’s current duty statement.  The roles and responsibilities of the applicant in the full-time position of Worship Pastor include, leading worship services, promoting the Church and its mission through consultations and scripture readings, coordinating the Vietnamese and English Service Boards, and organising pastoral care.  On this information, the Tribunal is satisfied that the applicant will be engaged on a full-time basis to perform the duties as a Pastor for VECA in coordinating, developing and managing the religious services provided by the Thyme Court Church as part of its ministry of evangelism. 

22. For these reasons, the Tribunal is satisfied that the requirements of cl 408.223(c) are met.

    Qualifications and experience – cl 408.223(d)

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

24. The delegate’s decision records that the applicant did not provide any supporting documents or information with the application, to support her claim that she has the appropriate qualifications and experience to undertake the proposed religious work.

25. In a written submission provided to the Tribunal, the applicant’s representative concedes, and the Tribunal accepts that, notwithstanding the applicant collating and making available current evidence in support of her application at the time of lodgement, due to an administrative error, this material was not uploaded to the Departmental system for consideration.

26. The applicant has provided to the Tribunal academic transcripts and letters of completion, evidencing that between 2013 and 2015, she completed a Certificate IV, Diploma and Advanced Diploma in Ministry at the Hillsong College in Australia. The information also supports that in 2018, the applicant attained a Bachelor of Theology from the Alphacrucious College in Australia.  The material before the Tribunal, including letters of support from previous colleagues, indicates that the applicant has undertaken volunteer work abroad since 2004 as well as during her training in Australia. In addition, the Tribunal observes that the applicant has been employed as a Creative and Worship Pastor at the Thyme Court Church since January 2019.  A copy of Minutes of VECA’s National Executive Committee, approving the applicant’s appointment to the position, as well as financial documents before the Tribunal, support this claim.

27. The Tribunal has had regard to material provided to it by the applicant, which was not before the delegate, in relation to her skills, qualifications and experience.  The Tribunal is satisfied, on this evidence, that the applicant has the appropriate qualifications and experience to undertake religious work for the sponsor as set out above.

28. For these reasons, the Tribunal is satisfied that the requirements of cl 408.223(d) are met.

    Religious institution passes the sponsorship or support test – cl 408.223(e)

29. Sub-clause 408.223(e) requires that the religious institution is either a temporary activities sponsor or a long stay activity sponsor and passes the sponsorship test in relation to the applicant. Alternatively, if the applicant was outside Australia when the application was made and the proposed length of stay as stated on the application form did not exceed 3 months, the religious institution must pass the support test in relation to the applicant.

30. In this case, having regard to the applicant’s location at the time the application was made and the proposed length of stay stated on the application form, the religious institution is required to be an approved sponsor of the relevant kind and pass the sponsorship test. In summary, a person ‘passes the sponsorship test’ if the following requirements are met (see cl 408.111):

    ·the person is an approved sponsor, and has agreed, in writing, to be the sponsor of the applicant, and has not withdrawn that agreement and has not ceased to be the sponsor of the applicant; and

    ·either there is no adverse information known to Immigration about the person, or a person associated with that person, or it is reasonable to disregard any such information (‘adverse information’ and ‘associated with’ have the meanings given in regs 1.13A and 1.13B); and

    ·if the person is not a temporary activities sponsor, the visa application was made on or before 18 May 2017.

31. Departmental records confirm that the Church was approved as a Temporary Activities Sponsor on 1 February 2019, for a period of five years. There is no evidence before the Tribunal which suggests that there is adverse information known to Immigration about the religious institution or any person associated with the religious institution.

32. On the basis of recent information received about the position, the Tribunal is satisfied that the sponsoring organisation continues to support sponsorship of the applicant and that the agreement has not been withdrawn.

33. For these reasons, the Tribunal is satisfied that the requirements of cl 408.223(e) are met.

    Conclusion

34. In light of the above findings, the Tribunal is satisfied that cl 408.223 applies to the applicant.

35. Accordingly, cl 408.219A is met.

36. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

37. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·cl 408.223 of Schedule 2 to the Regulations; and

    ·cl 408.219A of Schedule 2 to the Regulations.

    Nicola Findson
    Member