Hove (Migration)

[2020] AATA 247

Hove (Migration) [2020] AATA 247 (10 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Edward Hove
Mrs Caroline Hove
Master Othniel Kunashe Edward Hove
Master Ithiel Blessing Hove

CASE NUMBER:  1714728

HOME AFFAIRS REFERENCE(S):           BCC2017/340042 CLF2017/55158

MEMBER:R. Skaros

DATE:10 February 2020

PLACE OF DECISION:  Sydney

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.408.223 of Schedule 2 to the Regulations; and

·cl.408.219A of Schedule 2 to the Regulations.

Statement made on 10 February 2020 at 12:12pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) –religious institution – sponsor ceased to be eligible for charity tax concessions – current tax office and charities commission documents provided to tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 359, 360(2)(a)

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cll 408.219A, 408.223(b)

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 Immigration and Border Protection on 27 June 2017 to refuse to grant the applicants Temporary Activity (Class GG) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 25 January 2017. 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 (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.408.223(b) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had been invited by a body that meets the definition of ‘religious institution’ as provided for in r.1.03. Relevantly, the delegate found that the applicant’s sponsor, Forward in Faith Ministries International Ltd (the organisation), had ceased to be eligible for charity tax concessions.

4. The applicants 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.

5. On 22 October 2019, the Tribunal wrote to the applicants pursuant to s.359 of the Act, inviting them to provide current information about the requirements in cl.408.223. On 5 and 21 November 2019, the Tribunal received submissions and supporting documents which have been considered further below.

6. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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

9. 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)

10. Paragraph 408.223(a) requires that the applicant seeks to enter or remain in Australia to provide services as a religious worker.

11. The Tribunal has before it an Offer of Employment letter from Mr. Amos Wala, Finance Director of Forward in Faith Ministries International Ltd, indicating that the applicant’s role with the organisation is that of Pastor. The tasks of the position include overseeing and coordinating all Pastoral staff and all the activities of the organisation in Australia. It also involves teaching the word of God, praying, shepherding the organisation and sharing authority with others. 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. For these reasons, the Tribunal is satisfied that the requirements of cl.408.223(a) are met.

    Invitation–cl.408.223(b)

12. Paragraph 408.223(b) requires that the applicant has been invited to provide services as a religious worker by a religious institution that is lawfully operating in Australia. ‘Religious institution’ is defined in r.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.

13. The Tribunal has before it supporting documents, including a copy of the Constitution of the organisation, setting out the objectives of the organisation, which include appointing and training suitable men to act as evangelist religious leaders and pastors; promoting true fellowship and educating according to the Christian faith and the principles of the organisation.

14. The Tribunal has before it a letter issued by the Australian Taxation Office (ATO), on 30 September 2019, in respect of the sponsor indicating that the organisation is endorsed for charity tax concessions, including income tax exemptions. The Tribunal also received an ABN Lookup - current and historical details for the sponsor and an extract from the Australian Charities Not-for-Profits Commission (ACNC) confirming that the organisation is registered as a charity and that charity reporting is up to date.

15. The Tribunal has had regard to all the evidence before it and is satisfied that the organisation which invited the applicant to provide religious services is a ‘religious institution’ as defined in r.1.03.  For these reasons, the Tribunal is satisfied that the requirements of cl.408.223(b) are met.

    Religious activity – cl.408.223(c)

16. Paragraph 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 which has invited them to provide services as a religious worker.

17. Having regard to the employment agreement which sets out the main duties and tasks that will be carried out by the applicant on a full time basis of 38 hours per week, which includes teaching believers the vision of the Church, counselling on drugs and alcohol, preaching the word of God, leading in worship, reaching and teaching scriptures, the Tribunal is satisfied that the applicant will be engaged in religious activity as required.  For these reasons, the Tribunal is satisfied that the requirements of cl.408.223(c) are met.

    Qualifications and experience – cl.408.223(d)

18. Paragraph 408.223(d) requires that the applicant has appropriate qualifications and experience to undertake the proposed work or activity.

19. The applicant provided evidence of his qualifications and experience with the visa application, including an induction training certificate issued by the ZAOGA Forward in Faith International; a certificate from Africa Multination for Christ College evidencing his completion of a 3 year Diploma in Biblical Studies and Christian Leadership and a certificate of Ordination from Forward in Faith Ministries.  The applicant also provided a letter of appointment from Forward Faith Ministries dated 24 January 2017 indicating that they wish to continue his employment with the organisation.

20. The Tribunal is satisfied that the applicant has the appropriate qualifications and experience to undertake religious services for the sponsor as set out above. 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)

21. Paragraph 408.223(e) requires that the religious institution that has invited the applicant to provide religious services is either a temporary activities sponsor or a long stay activities 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.

22. 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 rr.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.

23. With respect to each of the above, the Tribunal makes the following findings.

24. Departmental records confirm that the organisation was approved as a Temporary Activity Sponsor on 1 November 2019.

25. 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. 

26. 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.

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

    CONCLUSION

28. In light of the above, the Tribunal finds that the applicant meets the applicable requirements of cl.408.223. Accordingly, cl.408.219A is met.

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

    DECISION

30. 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.408.223 of Schedule 2 to the Regulations; and

    ·cl.408.219A of Schedule 2 to the Regulations.

    R. Skaros
    Senior Member