Jang (Migration)

[2022] AATA 4622

Jang (Migration) [2022] AATA 4622 (29 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daeoug Jang

REPRESENTATIVE:  Ms Nicole Yoo

CASE NUMBER:  1932004

HOME AFFAIRS REFERENCE(S):          BCC2019/5328331

MEMBER:Alan McMurran

DATE:29 November 2022

PLACE OF DECISION:  Sydney

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 408.213 of Schedule 2 to the Regulations

Statement made on 29 November 2022 at 10:37am

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – multiple grants exceeding 4 years’ stay – completing a Christian music festival project with the sponsor – willingness to return to South Korea – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 408.213, 408.611

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 11 November 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 5 November 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, Mr Daeoug Jang, is a 63 year old citizen of the Republic of Korea. The applicant is a skilled musician as well as an ordained Minister of Religion.

3. The applicant applied for the visa on 23 October 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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 408.213(c) of Schedule 2 to the Regulations. The delegate found that under policy, it is not intended a visa holder remains in Australia on multiple grants for an extended period, exceeding 4 years’ stay in Australia. The delegate considered in the exercise of discretion whether a further reduced period of stay would be appropriate and came to the conclusion it would not in light of time already spent by the applicant in Australia, and the fact the applicant had already been granted a third religious visa for a further 3 months’ stay.

5. The applicant appeared before the Tribunal by video on 11 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The Tribunal determined that the virtual hearing was appropriate in the circumstances of this case to achieve the Tribunal’s objective to provide a mechanism of review that was fair, just, economical and both informal and quick and proportionate to the issue. No objection was taken to the form of the hearing and the applicant indicated he was ready to proceed and not require an adjournment.

6. The applicant was represented in relation to the review. The applicant’s solicitor also attended the hearing. The applicant provided the Tribunal with information prior to the hearing and made submissions as to why the applicant should have a further period to remain in Australia. The applicant also sought to correct the spelling of his name.

7. Following the hearing, the Tribunal agreed to an adjournment for a period to allow the applicant to make submissions why he should have a further stay in Australia to complete his current Christian musical project with the sponsor. The applicant made a further written submission setting out reasons for a reduced period of 12 months and providing an amended written contract with the sponsor, Sydney Full Gospel Grace Church (Inc).

8. The Tribunal indicated to the representative and the applicant that if it was unable to determine the matter once the further submissions had been received, a further hearing would be required.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration and without the need for a further hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant meets cl 408.213 and genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    Background

11. The applicant is a single 63-year-old man and has a sister who also lives in Sydney. He is not close to his sibling in Australia and says he rarely sees her. He has 2 other siblings in South Korea. He said he changed careers in the early 1990’s, where he had been a musician in a Christian band. He obtained a graduation Certificate from the Seoul Arts Theological College where he studied from March 1990 to February 1995.

12. The applicant first travelled to Australia in 2006 as a visitor departing after 3 months. As a student, the applicant arrived in Australia to study theology on 12 February 2008, completing his theological studies in Queensland, in 2015. He has remained in Australia continuously for a total of 14 years, except for a short period when the applicant returned to Korea for his ordination. He was ordained as a Pastor in the Presbyterian Church in Korea, on 16 November 2015, before returning to Australia.

13. The applicant obtained a subclass 401 temporary activity visa on 8 July 2015 as a religious worker. The subclass 401 visa program was replaced from 19 November 2016 with the 408 temporary activity visa. The applicant was granted a subclass 408 temporary activity visa on 12 July 2017, and a further subclass 408 visa on 25 July 2019, as a religious worker. The visa allows skilled workers to participate in religious work for a religious institution in Australia for up to 2 years at a time.

14. At the time of the hearing, the applicant gave evidence that he was arranging a contemporary Korean Christian music festival in Australia, following the pandemic, with the cooperation and assistance of four Christian churches located in metropolitan Sydney. As it is the applicant’s initiative for this festival, he would like to see it through before returning to Korea. He has the support of the sponsor, who seeks to engage him for that purpose and to assist young people in the aftermath of the pandemic who have been struggling. The church as a sponsor has provided a copy of an employment contract with the applicant setting out details of his remuneration and duties, and proposal for the grant of a further visa as a religious worker but with a period of stay.

    Evidence at hearing

15. The applicant gave evidence at his hearing. He said he had assisted “many churches” while in Australia. He said he had a reputation within the Korean churches in Australia as a musician, which had been his background in South Korea. He said once he completed his theological studies in Australia, he wanted to work for as many Australian Korean churches as he could, sharing his music. He said he conducted services and other pastoral activities in addition to playing music.

16. The applicant said he understood the refusal decision and the policy to allow a cumulative stay not to exceed 4 years in total. He also said it was his understanding that the period that he had spent studying while a student was not part of the cumulative total.

17. The applicant explained that he had worked for a number of different Korean churches, who wanted him to play music for them and to attract young people. He said he also performed other usual pastoral duties including conducting services as minister. He was asked why he was attracted to Australia and he explained that the Southern Cross College was well known and regarded in Korea. He was asked why he did not remain in Korea as a qualified pastor to work in his own country. He said he wanted to travel to an English-speaking country where he could promote Christian music.

18. The Tribunal put to him that his length of stay over 14 years, including while a student, made it appear he intended to live in Australia permanently. The Tribunal noted he had only returned to Korea for one week in 2015 when he was ordained. The applicant responded that while in Australia he had been introduced to a large Korean community from different churches and that he would regularly be asked to play firstly at one location and then at another. He said the first sponsor took him on for 2 years and then another sponsor for another 2 years, and that there was no shortage of requests for him to use his musical skill while working as a Christian pastor. He said there were many churches who needed his help and he would provide up to 4 weekly services at a time, conducting services himself usually twice weekly.

19. The Tribunal asked the applicant about why he wanted to continue to remain in Australia for a further period. He explained that he had been working on his own musical pieces for Christian services and to create a musical which he would take back to Korea, and with some Australian Korean performers. He provided written examples of some of his music. He said he thought it would be completed and the musicians trained within the next 12 months, including preparations made for a tour in Australia before travelling to Korea. He said once he had completed this project, he will return to Korea and start working on his next project.

20. He was asked whether he genuinely intended to remain temporarily in Australia and for the purpose of working as a Christian pastor and Minister of religion. He explained he had been a Christian Minister for many years, working for different Korean churches, and knew that his time in Australia was limited, and that he would need to return to Korea. He said he would accept the Tribunal’s decision and return when directed to do so, or if no further visa was granted, he would leave as required and return home. He said it was not his intention to remain permanently in Australia and that he intended to visit other countries after returning home.

    Post hearing submission

21. On 23 November 2022, the Senior Pastor of the sponsor, Munho June, asked the Tribunal to allow the applicant to remain and working for the sponsor for a further period until November 2023. The submission states, in part:

    “In the past many years, pastor Jang has done a lot of activities as a pastor offering praise worships at various churches in Sydney. When the church was unable to operate normally due to COVID-19, he composed praise music and undertook alternative worship praise services such as street praise or online live with the worship teams.

    Through pastor Jang a lot of Korean international students and young people who have struggled during the COVID-19 period were able to overcome the pain. Now to end the difficult period due to COVID-19 and to revive the church, we plan to work together with the other Korean churches in Sydney for a praise music concert.

    I hope that pastor Jang will be in charge of the preparation of this concert through our church for at least a year before returning to Korea, and provide an opportunity for our church and the Korean community to strengthen the Christian faith once again.”

22. The submission attaches a signed employment agreement between the applicant and the sponsor dated 23 November 2022. The agreement provides for the applicant’s remuneration comprising a base salary of $30,000 per annum plus superannuation and $25,000 calculated for housing, travelling, payment of utilities including telephone electricity and other expenses, and Australian workplace requirements for Annual and other leave.

23. The applicant’s representative further submits that the applicant be allowed to remain in Australia to finish his project, which is described thus: “A primary initiative has been to organise and hold the first Korean Christian music festival in Sydney, that will present a range of Christian music performances by Korean contemporary Christian music artists in Sydney as well as the Christian worship bands from the participating churches. The applicant has been playing a major role in organising the event and also planning to perform his composition ‘Agape’ at this festival. This is no small undertaking and involves considerable project management, liaising and coordination of many interest groups, individuals and business. Further the applicant will be supervising and rehearsing the worship teams who will be present at various programs. The Korean Christian community has high expectation regarding this event and it is considered a major event. It is expected to attract a large number of non-Christians and is a major initiative will set a new benchmark for their religious development and advancement”.

    Genuine intention to stay temporarily – cl 408.213

24. 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.

25. In the present case, the applicant seeks the visa for the purpose of working as a Minister of Religion.

26. 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)).

27. The Tribunal finds on the available information that there is no evidence the applicant has not complied with any conditions of a previously-held visa.

28. 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)).

29. The Tribunal has considered the available information and finds it accepts the applicant intends to comply with the conditions to which the Subclass 408 visa would be subject.

30. The Tribunal finds therefore that the applicant meets both cl 408.213(a) and cl 408.213(b).

    Other relevant matters – cl 408.213(c)

31. The Tribunal has also considered ‘other relevant matters’ (cl 408.213(c)). The Tribunal finds that there are no specified guidelines as to what might be “other relevant” matters in the Act or Regulations.

32. As a guide, policy provides that where the grant of the visa would result in the applicant exceeding four years stay in Australia, any further period of stay should be considered on the basis of providing sufficient time to allow the visa holder to finalise any current assignment in Australia and then depart or, as may be the case in this instance, to allow the applicant to complete a current project as part of his sponsorship and which began while the applicant was the holder of a substantive and valid Subclass 408 visa. The exercise of the discretion should be limited, based on specific circumstances supported by evidence and so as not to encourage repeated temporary activity applications, which would otherwise defeat the purpose of the temporary activity program. As indicated by the delegate, in those situations, applicants should consider other visa options.

33. In this instance, the features of the application very simply are as follows:

    ·     the applicant has studied theology over many years and is an ordained Pastor

    ·     the applicant is also an accomplished musician with a reputation for Christian music in the Korean community both in Australia and in Korea

    ·     the applicant has sought to exceed Department policy on the recommended time for temporary activity visas, which is for 4 years, while he has remained in Australia for a total of 14 years, but which time included 8 years as a lawful theology student; one of those years as a student, also included the first year of the applicant’s temporary activity visa granted in 2014

    ·     his time in Australia also includes time in consideration of the visa process since 2019; in total, the Tribunal calculates therefore that the applicant has in fact spent no more than 4 years full-time as a Minister of Religion on a temporary activity visa for that purpose, when excluding this delayed visa consideration process (3 years) while on a Bridging visa, and his time while still a student to 2014 (6 years), one year of which was after the visa grant.

    ·     the applicant has provided music and pastoral services for many Korean churches, during his time in Australia, with an emphasis on attracting young people through music

    ·     the applicant is creating a substantial musical program to be shared and showcased in the Korean community within the next 12 months

    ·     the applicant is part-way through creating and writing the music for this Christian program, and with the intention for the event to also travel to Korea when he returns, and to include Australian Korean musicians

    ·     it is proposed as a major event for the Korean community in Australia and requires significant preparation, organisation and dissemination within the Korean community and its youth for presentation in Australia

    ·     the applicant has provided written examples of his music to demonstrate his authenticity in this project

34. The Tribunal has listened to the submissions and had regard to the oral evidence from the hearing.

35. The Tribunal has found that the applicant does have a genuine intention to remain temporarily in Australia for the purpose for which the visa was granted, and finds there are no apparent concerns that the applicant may not comply with any further visa period, enabling him to assist the Korean churches involved with his sponsor to arrange and showcase a musical event.

36. The applicant has said clearly in response to questions from the Tribunal in his evidence that if he does not have a visa which entitles him to remain in Australia, he will return to South Korea.The Tribunal has accepted that evidence, and formed the view that the applicant was truthful and endeavouring to be straightforward with his answers. He gave no reasons for wanting to remain in Australia permanently or indefinitely on the expiry of his visa, indicating he intends to travel elsewhere as a Christian emissary and will stay only for as long as is required to complete the musical event, and then to leave when he his visa expires.

37. The Tribunal finds for these reasons and having regard to the ‘relevant matters’ as set out above, that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and that cl 408.213(c) is met.

38. The Tribunal finds therefore that cl 408.213 is met.

    Consideration-Further period of stay

39. Having considered the applicant’s submissions, and the factors as outlined above, the Tribunal finds it is an appropriate case where a further reduced period of stay should be granted to enable the applicant to complete his sponsored activities in Australia.

40. The Tribunal has listened to the applicant’s evidence and had regard to his visa history and the support from the sponsor and the stated reason for his continued stay. The Tribunal finds it is satisfied that the applicant requires a period until on or about November 2023 to complete his sponsored activities, and to present a Korean Christian musical festival as currently planned and progressing. The Tribunal is satisfied on the corroborating material, including submission of music written by the applicant, that the applicant is genuine in this project and working towards its completion. Taking into account also the visa history and the matters beyond the applicant’s control, including the time for completion of this visa review process and interruptions as occasioned to many projects community-wide by the pandemic and which has delayed implementation of the applicant’s project, and which had not been foreshadowed, the visa should be granted, and for a period endng no later than 1 November 2023.

1. 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.

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

   DECISION

3. 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 408.213 of Schedule 2 to the Regulations.

   Alan McMurran
   Member