Jeong (Migration)

[2020] AATA 235

Jeong (Migration) [2020] AATA 235 (3 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yohan Jeong

CASE NUMBER:  1932612

HOME AFFAIRS REFERENCE(S):           BCC2019/3769012

MEMBER:R. Skaros

DATE:3 February 2020

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.408.223 of Schedule 2 to the Regulations.

Statement made on 03 February 2020 at 2:23pm

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Religious worker stream – Religious Assistant – invitation by ‘religious institution’ – Church for the Glory of the Lord Incorporated – qualification for income tax exemptions – charity tax concession status reinstated – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 408.223

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 31 October 2019 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 July 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 (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. In this case, the applicant sought to meet the criteria for the Religious worker stream.

3. The delegate in this case refused to grant the visa on the basis that 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, the Church for the Glory of the Lord (the Church) had ceased to be eligible for charity tax concessions.

4. The applicant provided a copy of the delegate’s decision record with the application for review. The applicant was represented in relation to the review by his registered migration agent.

5. On review, the applicant provided a letter dated 13 December 2019 issued by the Australian Taxation Office in relation to the sponsor, Church for the Glory of the Lord Incorporated, being endorsed for charity tax concession.  The applicant also provided an extract from the Australian Business Register (ABR) listing details of the Sponsor.

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

   Purpose of stay–cl.408.223(a)

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

10. The Tribunal has before it a copy of the visa application indicating that the applicant’s role with the Church is that of Religious Assistant. The tasks of the position include providing assistance to the Pastor in all areas of church activities such as Sunday school activities, Christian education, Bible training, directing Sunday School teachers and worship preparation.  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)

11. 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.

12. The evidence before the Tribunal indicates that the sponsor is a body that promotes the Christian faith, which includes carrying out beliefs and practices by the members in support of that faith.

13. The Tribunal also has before it a letter issued by the Australian Taxation Office (ATO), on 13 December 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 details for the Sponsor and undertook an Australian Charities Not-for-Profits Commission (ACNC) search confirming that the organisation is registered as a charity and that charity reporting is up to date.

14. In relation to the concerns raised by the delegate in the decision record, the registered migration agent explained that the Church was registered as a charity organisation qualifying for ATO tax exemption at the time of the visa application, however it lapsed after the visa application was lodged. He explained that the Church applied for its tax concession charity status to be reinstated and that he had advised the delegate requesting further time to provide evidence of its charity status.  The migration agent explained that following the delegate’s refusal, the Church had since had their registration as a charity restored.

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 visa application form 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 providing assistance to the Pastor in all areas of church activities such as Sunday School activities, Christian education, Bible training, directing Sunday School teachers and worship preparation, the Tribunal is satisfied that the applicant will be engaged in religious activity as required.

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

    Qualifications and experience – cl.408.223(d)

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

20. The applicant provided evidence of his qualifications and experience with the visa application, including a certificate from Asia United Theological University evidencing his completion of a Bachelor of Arts degree and a Pastor Recommendation from Pastor Jaedeok Lee from the Overflowing Gospel Church indicating that the applicant served in different mission projects.

21. 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)

22. 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.

23. 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.

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

25. Departmental records confirm that the Church was approved as a Temporary Activity Sponsor on 27 June 2019. 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.

26. 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. 

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

    Conclusion

28. In light of the above findings, the Tribunal is satisfied that cl.408.223 is met by the applicant.

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 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.

    R. Skaros
    Senior Member