Kasini (Migration)

[2018] AATA 2645

Kasini (Migration) [2018] AATA 2645 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Any Kasini

CASE NUMBER:  1610502

DIBP REFERENCE(S):  BCC2016/1504816 CLF2016/45801

MEMBER:Katie Malyon

DATE:14 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.

Statement made on 14 June 2018 at 1:15 pm

CATCHWORDS
Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 (Temporary Work (Long Stay Activity)) – Genuine temporary entrant – Not identified in a nomination of an occupation – Ceased nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 140GB, 359AA

Migration Regulations 1994 (Cth),rr 1.13A, 1.13B, 2.75A, Schedule 2 cls 401.212, 401.214

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 on 4 July 2016 to refuse to grant the visa applicant, Miss Any Kasini, a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Kasini applied for the visa on 19 April 2016.  At the time of application, Class GB contained just one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).

3. The criteria for a Subclass 401 visa are set out in Part 401 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’ as well as the criteria of one of the 4 alternative visa streams: the Exchange stream; the Sport stream; the Religious Worker stream; or, for visa applications made on or after 23 March 2013, the Domestic Worker (Executive) stream.

4. In the present case, Miss Kasini is seeking the visa in the Religious Worker stream. This stream provides for the temporary entry of persons who will be full-time religious workers in Australia. The delegate refused to grant the visa because Miss Kasini did not meet cl.401.214 of Schedule 2 to the Regulations: the delegate was not satisfied that Miss Kasini genuinely intends a temporary stay in Australia having regard to the fact that she had already spent just over 5 years in Australia as at the date of decision on 4 July 2016 and was seeking entry for a further 2 years until 1 July 2018.

5. Miss Kasini appeared before the Tribunal on 11 December 2017 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Budiman Hardjono, the Public Officer for the organisation sponsoring Miss Kasini’s continued temporary residence in Australia, Au-Guang Maitreya Incorporated (AGM Inc), based in Maroubra.  AGM Inc is a Buddhist Association incorporated in New South Wales by the Department of Fair Trading.  It is the Australian chapter of Maitreya Buddhist Assembly which is based in Indonesia.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The initial issue in the present case was whether Miss Kasini meets cl.401.214 of Schedule 2 to the Regulations, that is, whether she is a genuine temporary entry. However, since lodgement of her review application with the Tribunal, another issue has arisen. The new issue arises because Miss Kasini is no longer the subject of an approved nomination made pursuant to s.140GB of the Act as required by cl.401.212 of Schedule 2 to the Regulations. Relevant provisions from the Regulations referred to in this decision are extracted in the Annexure to this decision.

8. The Tribunal notes changes to the temporary work visas scheme were introduced by the Migration Amendment (Temporary Activity Visas) Regulation 2016 (the Amending Regulations) effective 19 November 2016 including repeal of the Subclass 401 visa: however, the changes introduced only affect visa applications, nominations and sponsorship applications made on or after 19 November 2016.  Accordingly, the Tribunal has considered Miss Kasini’s Subclass 401 visa application having regard to the law in place prior to 19 November 2016.

   Approved nomination

9. Clause 401.212 of Schedule 2 to the Regulations requires that an applicant is identified in a nomination of an occupation or activity approved under s.140GB of the Act, and that the approval of the nomination has not ceased: r.2.75A of the Regulations. The nomination must be have been made by a person who, at the time of approval, was a long stay activity sponsor, an exchange sponsor, a sport sponsor or a religious worker sponsor.

10. Additionally, this criterion requires either that there is no adverse information known to Immigration about the person who made the approved nomination or a person associated with the nominator, or that it is reasonable to disregard any such information. The terms ‘adverse information’ and ‘associated with’ are defined in r.1.13A and r.1.13B of the Regulations.

11. Consistent with the provisions of r.2.75A(2) of the Regulations, a nomination ceases on the earliest of the following:

    ·the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor;

    ·12 months after the day on which the nomination is approved;

    ·3 months after the person’s approval as a sponsor ceases;

    ·if the person’s approval as a sponsor is cancelled under subsection 140M(1) of the Act, the day on which the person’s approval as a sponsor is cancelled; and,

    ·the day on which the applicant, or the proposed applicant, who was identified in relation to the nominated occupation, program or activity is granted a visa on the basis of the nomination.

12. Departmental records indicate that the most recent nomination made by Miss Kasini’s sponsor, AGM Inc, was approved on 30 April 2016. Accordingly, that nomination ceased one year later on 30 April 2017 consistent with the provisions of r.2.75A(2)(b) of the Regulations.

    Documentation received prior to the hearing

13. Prior to the hearing, Mr Hardjono provided a letter addressing criteria identified in the delegate’s decision together with documentation including a letter of support from AGM Inc, Miss Kasini’s Curriculum Vitae, a contract of employment between Miss Kasini and AGM Inc, the mission statement for AGM Inc, an Organisation Chart for AGM Inc and assorted photographs. 

    Hearing

14. At the commencement of the hearing the Tribunal observed that, at time of its decision, an applicant must be the subject of an approved nomination by a person who, at that time, was approved as a sponsor.  It also noted that, as a result of the repeal of the Subclass 401 visa following introduction of the Amending Regulations, a new nomination could not be lodged by AGM Inc nominating Miss Kasini for a Subclass 401 visa.  The Tribunal observed it has no discretion and must apply the law. 

15. Consistent with the provisions of s.359AA of the Act, the Tribunal put to Miss Kasini that the most recent nomination by AGM Inc in respect of her ceased on 30 April 2017 and that it was not possible to have a new nomination lodged following introduction of the Amending Regulations: as a result, she is incapable of meeting the requirements of cl.401.212 of Schedule 2 to the Regulations. Miss Kasini slowly nodded. Mr Hardjono told the Tribunal that he has signed all documentation on behalf of AGM Inc in his capacity as its Public Officer and only today, at the hearing, has he been informed of the introduction of the Amending Regulations and its impact on Miss Kasini’s Subclass 401 visa application. He and Miss Kasini requested additional time in which to respond to the Tribunal’s invitation to comment on the information put to Miss Kasini consistent with the provisions of s.359AA of the Act. Aware that neither Miss Kasini nor AGM Inc had access to professional immigration advice, the Tribunal provided a copy of its brochure Immigration Assistance with details of pro bono service providers across Australia. 

    Documentation received after the hearing

16. After the hearing, on behalf of Miss Kasini and AGM Inc, Mr Hardjono provided evidence from the NSW Department of Fair Trading of his appointment as the Public Officer of AGM Inc.  He also provided a submission in which he states:

    ·on 19 November 2016 the Amending Regulations replaced the Subclass 401 visa with a Subclass 407 Training and a Subclass 408 Temporary Activity visa.  This has unfairly affected Miss Kasini’s Subclass 401 visa application whilst it was still before the Tribunal;

    ·the application for review was lodged with the Tribunal around 15 July 2016.  The nomination was approved on 30 April 2016 and was valid for a year.  If the Tribunal’s hearing could have been made available within 6 months of lodgement of the review application, AGM Inc would still have had a valid nomination at the time of the hearing and Miss Kasini would have had a much better chance to have a favourable consideration and review.

    ·Miss Kasini has been a dedicated Maitreya Buddhist nun since she turned 17 years old in 1994.  Her multiple years of personal and religious relationship with the Guang Maitreya Temple in Sydney is special.  Her need for a suitable visa is only a temporary nature, not permanent, as she will go back home (to look after) her mother in Indonesia. 

    ·in Miss Kasini’s case, it is more like a “Medium-Term Temporary Visa for 5-10 years” rather than a “Temporary Visa for 4 years total” (that is required).  Her current position is unfortunate as there is no Australian visa allowing her to stay for a “Medium-Term Temporary Visa” of up to 10 years.  AGM Inc wishes the government would create (such a visa) in the near future. 

17. The Tribunal has considered evidence provided, including submissions from AGM Inc.  Comments in relation to AGM Inc’s submission are discussed below in the context of a possible application to the Minister for exercise of his personal powers of intervention.

18. Having regard to evidence available to it from the Department’s records, the Tribunal is satisfied that, at the time of its decision, Miss Kasini is not identified in a nomination of an occupation or activity approved under s.140GB of the Act which has not ceased as required by cl.401.212(3) of Schedule 2 to the Regulations: the nomination made by AGM Inc in respect of Miss Kasini ceased on 30 April 2017.

19. Accordingly, the Tribunal finds that cl.401.212 of Schedule 2 to the Regulations is not satisfied.

20. Miss Kasini has only sought to satisfy the criteria for a Subclass 401 visa in the Religious Worker stream.  No claims have been made in respect of the other visa streams.  As requirements that must be met by a person seeking the visa in the Religious Worker stream have not been met, the decision under review must be affirmed.

    Is this an appropriate case to refer to the Minister?

21. Under s.351 of the Act the Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant if the Minister thinks it is in the public interest to do so.

22. The Tribunal has no statutory obligation to consider whether a matter should be referred to the Minister for the consideration of the possible exercise of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power after the Tribunal has made its decision, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

23. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.[1]  The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances. 

    [1] Available at >

    The Tribunal has considered whether the circumstances in Miss Kasini’s case amount to unique or exceptional circumstances, particularly where the option of an offshore Subclass 408 visa application sponsored by AGM Inc remains open to her, and it therefore has decided not to refer this matter to the Minister.  It notes, however, that it remains open to Miss Kasini (and AGM Inc) to request Ministerial intervention directly themselves.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from Migration Regulations 1994

    r.2.75A   Period of approval of nomination - other visas
    
    (1)  This regulation applies to a nomination of an occupation, a program or an activity in relation to a visa and a person, as explained by the table.

Item	Visa to which the nomination relates	Person to whom the nomination relates
1	Subclass 401 (Temporary Work (Long Stay Activity)) visa	Holder Applicant Proposed applicant
2	Subclass 402 (Training and Research) visa	Holder Applicant Proposed applicant
3	Subclass 411 (Exchange) visa	Holder Applicant
5	Subclass 420 (Temporary Work (Entertainment)) visa	Holder Applicant Proposed applicant
6	Subclass 421 (Sport) visa	Holder Applicant
9	Subclass 428 (Religious Worker) visa	Holder Applicant
10	Subclass 442 (Occupational Trainee) visa	Holder Applicant

(2)  An approval of a nomination ceases on the earliest of:

(a)  the day on which Immigration receives notification, in writing, of the withdrawal of the
          nomination by the approved sponsor; and
    (b)  12 months after the day on which the nomination is approved; and
    (c)   3 months after the day on which the person’s approval as the kind of sponsor that could make
          the nomination ceases; and
    (d)  if the person’s approval as the kind of sponsor that could make the nomination is cancelled
under subsection 140M(1) of the Act - the day on which the person’s approval is cancelled;
           and,
    (f)   the day on which the applicant, or the proposed applicant, who is identified in relation to the
          nominated occupation, program or activity, is granted a visa on the basis of that nomination.

Schedule 2

….

Subclass 401 - Temporary Work (Long Stay Activity) 

…

401.212  (1) The applicant is identified in a nomination of an occupation or activity approved under section 140GB of the Act.

(2)  The nomination was made by a person who was, at the time the nomination was approved:
     (a)  a long stay activity sponsor; or
     (b)  an exchange sponsor; or
     (c)  a sport sponsor; or
     (d)  a religious worker sponsor.

(3)  The approval of the nomination has not ceased under regulation 2.75A.

(4)  Either:
     (a)  there is no adverse information known to Immigration about the person who made the
          approved nomination or a person associated with that person; or
     (b)  it is reasonable to disregard any adverse information known to Immigration about the person
          who made the approved nomination or a person associated with that person.

401.212A Either:

(a) the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or
(b)  both of the following apply:

(i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;
(ii)  the Minister considers that it is reasonable to disregard the conduct.

401.213 The applicant has adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia. 

401.214 The applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, having regard to:

(a)  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 401 visa would be subject; and

(c)  any other relevant matter.

…

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