Ken (Migration)

Ken (Migration) [2020] AATA 5414 (19 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sovannara Ken
CASE NUMBER:  1724598
HOME AFFAIRS REFERENCE(S):          BCC2017/2843252 CLF2017/107145
MEMBER:Karen Synon
DATE:19 October 2020
PLACE OF DECISION:  Melbourne
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 19 October 2020 at 2:10pm
CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – genuine temporary stay in Australia – lengthy stay on six Religious Worker visas – extensive role of a Buddhist monk – Labour Agreement applications for monks on hold – settled intentions to apply for a visa – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 408.213
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 September 2017 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 9 August 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). Applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.408.213 of Schedule 2 to the Regulations because she was not satisfied that he genuinely intended a temporary stay in Australia.
The applicant applied for review of the primary decision on 10 October 2017 and provided a copy of the Department’s decision.
The applicant was represented in relation to the review by his registered migration agent.
On the basis of the information received, as summarised below, the Tribunal has determined, in accordance with s.360(2)(a) of the Act, that it should decide the review in the applicant's favour on the basis of the material before it.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is cl.408.213.
Genuine intention to stay temporarily – cl.408.213
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.
In the present case, the applicant seeks the visa for the purpose of religious work.
In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa: cl.408.213(a).
After reviewing the Department Integrated Client Services Records (ICSE) records, the Tribunal, is satisfied that there is nothing to indicate that the applicant did not comply with the conditions of his last substantive visa or any subsequent bridging visas. He therefore satisfies cl.408.213(a).
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).
There is no evidence to suggest that the applicant does not intend to comply with the conditions to which the Subclass 408 visa would be subject.
The Tribunal must also consider any other relevant matters as required by cl.408.213(c).
Relevantly the delegate, in refusing this visa recorded:
As of today's date the applicant has spent 2188 days in Australia on temporary religious worker visas. Current departmental policy supports a four year stay in Australia as the holder of temporary visas. A four year stay is equal to 1460 days.
I have also considered the legal submission that accompanied the visa application alongside the current departmental policy supporting the Temporary Activity visa (subclass 408) genuine temporary entrant clause 408.213. While I acknowledge that the legal submission requests further time in order for the applicant to apply for another visa class if they are eligible and state their intention, I have taken into consideration and placed primary weight on the following factors:
·The applicant has spent 728 days in Australia on religious worker visas outside the current supported policy period of 1460 days (4 years);
·The applicant has presented no evidence that they have applied for another visa class;
·The applicant has been counselled previously that it is not the intention that a visa holder remains in Australia on multiple grants of Temporary Activity (Subclass 408) Visa for an extended period of time.
I have given weight to the significant period of time the applicant has spent onshore and recognise that the applicant and sponsor have had ample time in Australia to consider and apply for an alternative visa subclass. I further consider that the applicant has held six Religious worker visas since 9 July 2008 and was previously counselled that it is not the intention that a visa holder remains in Australia on multiple grants of Temporary Activity (Subclass 408) Visa for an extended period of time.
A detailed submission provided to the Tribunal relevantly contends:
Venerable Ken arrived in Australia on 9 August 2008 as the holder of a Religious Worker (subclass 428) visa and was subsequently granted two further Religious Worker (subclass 428) visas, the latter of which extended his period of stay to 9 November 2013.
On 8 November 2013, the CBVA lodged nomination applications under the Employer Nomination Scheme with a view to sponsoring Venerable Ken for permanent residence. The officer of the CBAV who lodged the nomination applications, Mr Meng Bunlay, being neither a registered migration agent nor a lawyer at the time, then attempted to lodge an ENS (subclass 186) visa application on behalf of Venerable Ken. Encountering technical difficulties with the online system, Mr Bunlay was unable to proceed to final lodgement of the ENS (subclass 186) visa applications. Mr Bunlay mistakenly believed that lodging the nomination applications gave rise to bridging visa entitlements for the two monks and, accordingly, following the expiry of the monks’ respective Religious Worker (subclass 428) visas, they would have an automatic entitlement to a bridging visa pending a decision in respect of the nomination application.
Venerable Ken, having trusted the CBAV to assist with their previous visa applications and having had a ‘clean’ record with the Department, assumed that his visa status was taken care of and that no action was required on his part. It was not until Mr Bunlay returned from holidays on 12 February 2014 that, while reviewing correspondence received by the CBAV in his absence, he realised there was no bridging visa grant letter from the Department in respect of Venerable Ken. He proceeded to call a meeting of the Special Executive Committee of the CBAV on 23 February 2014 to discuss this and the Committee decided that Venerable Ken would need to attend the Department to make relevant inquiries and to attempt to resolve the situation.
Under the guidance of CBAV, Venerable Ken lodged a Temporary Work (Long Stay) (subclass 401) visa application which was subsequently refused.
Venerable Ken then made application to the Migration Review Tribunal (‘Tribunal’) for a review of the decision to refuse his Long Stay Activity (subclass 401) visa applications. On 8 February 2016, the Tribunal remitted the matter for reconsideration and with a direction that he met subclause 401.214 of the Regulations, thus satisfying the ‘genuine temporary entrant’ requirement…The Tribunal… found that the review applicant could, and did, satisfy the ‘genuine temporary entrant’ requirement despite having spent several years in Australia and despite the CBAV’s nomination application having been lodged under the Employer Nomination Scheme.
Following remittal from the Tribunal, the Department granted Venerable Ken a Temporary Work (subclass 401) visa on 26 April 2016, which expired on 26 July 2016. On 9 November 2016, Venerable Ken was granted a further Temporary Work (subclass 401) visa which expired on 9 February 2017. On 7 February 2017 Venerable Ken applied for a Temporary Activity (subclass 408) visa which was granted on 19 May 2017 and expired on 9 August 2017. Venerable Ken lodged the present Temporary Activity (subclass 408) visa applications on 8 August 2017, which was refused on 27 September 2017 on the basis that he did not meet the genuine temporary entrant requirement.
Cambodia Buddhist Association of Victoria (CBAV) is a not-for-profit Cambodian Buddhist pagoda in Melbourne, serving the teachings of Buddhism. CBAV is a voluntary Cambodian community that aims to preserve the rich Cambodian culture and tradition, foster and maintain good relationships amongst Cambodians in Australia and provide information regarding Cambodian Buddhism in Australia. [It’s statement of purpose is]
§To support the Cambodian Buddhist monks living in Victoria.
§To raise funds to build a Cambodian Buddhist monastery in Melbourne.
§To disseminate information on Hinayana Buddhism in Australia.
§To carry out mission work on Buddhism for Australians in Australia.
§To foster and maintain good relationship among Cambodians in Australia.
§To maintain the Cambodian cultural heritage in Australia.
We confirm that CBAV is a not-for-profit organisation exempted by the Australian Tax Office for taxation purposes….We further enclose a letter from Charles Wallace & Associates Chartered Accountants dated 31 October 2017 confirming that CBAV is a registered charity in Australia and is exempt from income tax…
On 15 December 2016, CBAV made a labour agreement request nominating Venerable Ken in the occupation of Minister of Religion. The request was rejected on 9 March 2017 based on the Minister’s policy that there can only be one Minister of Religion in a religious establishment.
On 20 March 2018, CBAV made a second labour agreement request nominating Venerable Ken in the occupation of Minister of Religion. The request was rejected one week later, on 27 March 2018, on the basis of the Department’s policy that the Department will not consider a new labour agreement request while any immigration matter for the nominee is awaiting an outcome.
It is submitted that, contrary to the delegate’s findings at the primary level, Venerable Ken genuinely intends to stay temporarily in Australia in order to carry out his duties as a religious worker…
Further consideration should be given to the applicant’s intentions if it appears the applicant’s qualifications/competencies or employment background is significantly inconsistent with the supported activities. For example, if an applicant who has no history with a religious institution is supported or sponsored for a religious leadership role.
Venerable Ken is eminently qualified for this position and has undertaken the same work in Cambodia and Australia, having worked for Buddhist temples for the past 20 years. Venerable Ken commenced his religious education in or around 1993 and was ordained as a Bhikku on 12 March 1994…He is now a senior monk within the temple and assists to train younger monks through a combination of informal guidance and formal teaching.
The intentions of the applicant are to carry out religious worker activities in accordance with the wishes of the Buddhist community in Victoria. There is a genuine need for their skills and experience in Australia. The nominated position was not created to secure their stay in Australia. There is sufficient evidence regarding his personal attributes and background to confirm his dedication and highly effective conduct in respect of his role as religious workers. There is ample evidence to show that there is a genuine need for Buddhist monks in Australia. CBAV has historically recruited Buddhist monks from Cambodia, as they have experienced the required monastic lifestyle and extensive training before coming to Australia and they understand what it means to be a Buddhist monk. As part of their ordination, Buddhist monks must take certain vows, known as the ten precepts, one of these is a vow of poverty. It is difficult to source Buddhist monks within Australia who are prepared to accept this humble lifestyle and join the monastery. Without the ability to sponsor overseas Buddhist monks, CBAV would be unable to provide religious services to its constituents.
CBAV requires Buddhist monks to work in a full-time capacity and to undertake various religious duties in keeping with the extensive training and standing of a Buddhist monk. The Buddhist monks are required to officiate at various regular religious ceremonies, which occur either at the temple or within the broader community. They travel within the community, attending longevity ceremonies for newborn babies and elders of the community, family religious functions, marriage and occasional ceremonies dedicated to ancestors, pre and post-mortuary ceremonies at homes, funeral parlours, cremations or burials, pre and post-counselling for grief and loss. As is evident, the work performed by Buddhist monks involves a significant element of community service. We are instructed that the President and the Abbot are both elderly and suffer from ongoing and progressing health difficulties; they are unable to travel into the community to conduct religious ceremonies and rely heavily on the applicants and other monks in the temple.
The Buddhist monks are required to participate in and lead various religious ceremonies during the celebration of the Khmer calendar year, including but not limited to, the Khmer New Year occurring in April this year. It is important that Buddhist monks work in groups of four to undertake blessing ceremonies and, for religious and cultural reasons, they cannot simply delegate one monk to one ceremony. Dr Thong Thel’s expert report dated 16 August 2017, describes the Khmer Buddhist temple structure and the tasks and duties of a Buddhist monk as applicable and relevant for the present matter. Dr Thel states that:
A number of monks are needed in order for a Khmer Buddhist Temple to deliver public worship services and its many ancillary services to worshippers and members of the community. The Book of Discipline dictates that a minimum of four Buddhist monks are needed in order to perform public worship service. It is generally regarded, and perceived by worshipers, that the more monks performing the public worship, the more the more blessing that will be received by worshipers.
There are two means through which religious services are provided by Buddhist monks during the year, that is, services provided at the home of worshippers and services provided in the temple. Services are provided at the temple when worshippers attend or provided at the respective households of worshippers as prior arranged with the temple, for example, in circumstances where worshippers are elderly or injured and therefore cannot make the trip to the temple. During normal periods within a year, there may be around four services during the day, however, during busier periods within the year, there would be up to ten services per day.
In addition to the services provided in respect of each Buddhist and Semi-Buddhist ceremonies identified above, Buddhist monks also provide religious service on special occasions, including providing blessing at the birth of a baby and to sick persons in the hospital or at the person’s home, perform engagement, wedding and funeral ceremonies in accordance Khmer culture and tradition. A Buddhist monk therefore has the role to partake in every stage of a worshipper’s life.
The role of a Buddhist monk is extensive. In addition to coordinating religious services and ceremonies, a Buddhist monk is required to maintain and clean the temple grounds and facilities, and provide teaching, counselling and refuge for worshipers and members of the community. Buddhist monks would be required to go into the community households in groups of four guided by a senior monk; sometimes three to five different families require the services on the same day.
As the Tribunal is aware, when Venerable Ken originally lodged the present Temporary Activity (subclass 408) visa applications, he required a visa period of six months so he could remain in Australia in anticipation of CBAV making a Labour Agreement request. CBAV first made a Labour Agreement request on 15 December 2016. The Labour Agreement request was ultimately rejected on 9 March 2017 on the basis that there can be no more than one Minister of Religion at each establishment. We note that the occupation of Minister of Religion was the only available occupation under the Labour Agreement stream at that time.
On 20 June 2017, Ms Catherine Farrell of this office received an email from “Ann”, the Assistant Director of the Labour Agreement team. Ann informed Ms Farrell that a further subclass 401 (now subclass 408) visa application could be sought for a period of six months in circumstances where a Labour Agreement request is currently before the Department, given that policy clarification would be forthcoming in future weeks from the Minister himself regarding requests for Labour Agreements lodged by religious organisations.
On 8 August 2017, Ms Farrell spoke with Ms Vanessa Jacobsen of the Department’s Labour Agreement section, who further advised that our clients without pending requests for Labour Agreements should refrain from lodging a further Labour Agreement request until the Department received updated policy guidance or clarification from the Minister. Ms Jacobsen advised Ms Farrell that, until such guidance or clarification was issued, all Labour Agreement requests for Ministers of Religion were being placed on hold. She further advised that, in circumstances where our clients were holding subclass 401 or 408 visas, lodging further visa applications was the most appropriate option for them, given the uncertainty surrounding the Labour Agreement process and provided that they satisfied relevant criteria.
Cumulatively, the advice of Ann and Ms Jacobsen suggested that the grant of a Temporary Activity (subclass 408) visa for a period of six months was considered to be manifestly appropriate in the circumstances, given that a Labour Agreement request would be lodged on behalf of CBAV once the Minister provided updated policy guidance to the Labour Agreement section. Accordingly, the present Temporary Activity (subclass 408) visa applications were lodged to enable Venerable Ken to remain in Australia in anticipation of CBAV making a further Labour Agreement request after the Minister provided his updated policy guidance. This was a legitimate course of conduct for the two monks to undertake in the circumstances, in light of the advice received from Ann and Ms Jacobsen of the Department’s Labour Agreement section.
However, the Minister provided his policy update on 14 August 2017 in response to the Royal Commission into Institutional Responses to Child Sexual Abuse requiring religious organisations seeking a Minister of Religion Labour Agreement to notify the Department of any adverse information about the organisation relating to child sexual offences…
CBAV made a second Labour Agreement request on 20 March 2018 in the nominated occupation of Minister of Religion. The request was rejected one week later, on 27 March 2018, on the basis of the Minister’s policy not to consider a Labour Agreement request while any immigration matter for the nominee is awaiting an outcome; namely, the present review application in respect of the two monks.
More recently, following intense lobbying and compelling submissions from stakeholders and community interest groups over the past number of years, the occupation of Religious Assistant (ANZSCO 451816) was made available for the first time on 25 September 2019 for a Labour Agreement. Previously, Buddhist temples, such as CBAV, faced significant difficulties in having a Labour Agreement request approved in order to sponsor their Buddhist monks as the Department adopted the view that there could only be one sponsored Minister of Religion within a religious institution and required that person to not only head the institution but to preach to congregants, as in the Christian faith, rather than to lead quiet meditations and other contemplative activities. The Department thus had no regard for the largely non-hierarchical structure of a Buddhist temple and the need for a number of Buddhist monks to work together to perform religious ceremonies and provide religious services in concert, as well as meditate.
With the recent inclusion of the occupation of Religious Assistant (ANZSCO 451816) for a Labour Agreement in November 2019, CBAV would like to carry out their intention to lodge a Labour Agreement request nominating Venerable Ken as a Religious Assistant (ANZSCO 451816). However, the Department will not consider approving a request for a Labour Agreement while any immigration matter for a nominee is awaiting an outcome. Labour Agreement request can thus only be made if the two monks have been granted Temporary Activity (subclass 408) visas. They cannot have a pending immigration matter, whether with the Department or the Tribunal, awaiting an outcome. Clearly, Venerable Ken also cannot be barred by s.48 of the Act should he wish to apply onshore for Employer Nomination Scheme (subclass 186) visas in the labour agreement stream, if a Labour Agreement is approved. However, even if CBAV is able to make a Labour Agreement request in respect of the monk, there is no certainty that the request will be approved. The processing time for a Labour Agreement can take up to 6 months. If the Labour Agreement is approved, Venerable Ken will consider whether they wish to apply for Employer Nomination Scheme (subclass 186) visas…
At present, the applicant genuinely intends to remain in Australia temporarily as the holder of a Temporary Activity (subclass 408) visa to continue to provide religious services as a Religious Worker. Hey may, if a positive outcome is achieved in respect of a future Labour Agreement request by CBAV, consider applying for further visas. That possibility is, however, far too remote to be relevant with respect to the monks’ current intentions to remain in Australia temporarily. There are far too many conditions precedent that must first be met before the possibility might arise for Venerable Ken to remain, most of which are beyond the control of CBAV and the monks. It is not presently the settled intention of the monk or CBAV for them to remain beyond the period of a further Temporary Activity (subclass 408) visa, if granted…
The notion of a ‘settled intention’, in the sense of a realistic and foreseeable intention, is intellectually consistent with the Saravanan notion of such intention lacking ‘remoteness’ or a high degree of uncertainty when considering the possibility of applying for a further visa as discussed above. In the present case, it cannot be said that Venerable Ken have settled intentions to apply for a visa at the conclusion of the validity period of a Temporary Activity (subclass 408) visa, if granted to them. At present, he genuinely intends to remain in Australia temporarily as the holder of a Temporary Activity (subclass 408) visas to continue to provide religious services as a Religious Worker and they may, if a positive outcome is achieved in respect of a future Labour Agreement request by CBAV, consider applying for a further visa at that time. That possibility is, however, far too remote to constitute a settled intention on the part of Venerable Ken at the present time.
We acknowledge that the applicant has been resident in Australia for more than four years…It is clear from [Department] policy that there is considerable discretion in respect of the consideration of previous periods of stay in Australia when assessing this criterion. Despite having spent more than four years in Australia, Venerable Ken only seeks a further six months stay here to finalise their religious work and, if the opportunity arises i.e. if and only if a Labour Agreement request by CBAV is approved, he may remain in Australia and continue his valuable services for CBAV. It is therefore our submission that the applicant satisfies regulation 408.213; the ‘genuine temporary stay’ criterion, and that the Tribunal can rely on [Department] policy in this regard. It is submitted that this policy should not be read as requiring an adverse assessment of GTE simply where an applicant has been present in Australia for over four years and that, should it be considered to apply in that way, it would clearly be ultra vires.
On the basis of the above, it is our strong contention that Venerable Ken satisfies the requirement for the grant of Temporary Activity (subclass 408) visa to [him] for a period of six months from the date of the Tribunal decision.

A statement from the applicant relevantly reads:
v I cornmenced my education in or around 1987 at Thnaot Chum Primary School, Osaray commune, TramKak District, Takeo province and undertook about five years of study there. Upon leaving, I commenced work at a Buddhist temple in 1993 called Thnaot Chhum temple in Thnaot Chhum village, Osaray commune, Tram Kak district, Takeo province.
v After about a year of training and study of Buddhist principles, ideology and practice, within Thnaot Chhum commune, I was ordained as a Bhikku on 12 March 1994 and was given the name Sothamapanhor.
v In 1995-1996, I completed my first formal year of Buddhist education at Wat Tuol Sala, Prey Puoch commune, Ang Snuol district, Kandal province. I received two certificates there which I have now misplaced.
v Between 1996 and 1998, I completed Year One Dhamma-Vinaya with a title of Dhamma Expert First Level, Year Two Dhamma Certificate, with a title of Dhamma Expert of the Second Level, and the third Dhamma-Vinaya certificate was awarded to me in 1998, when I obtained my Dhamma Expert of the Third Level. During this period, I spent two years at Wat Tuol Sala, then moved to a different temple called Wat Samraong Andet, in Phnom Penh Thmey quarter, Russey Keo district, Phnom Penh. During this training and my time at Wat Tuol Sala and Wat Samraong Andet, I broadened my knowledge of Buddhist teachings and rituals, I took part in religious services and attended classes on Buddhist practices within the temples. I learned through observation and practice how the traditions and ceremonies function, and moved, like all young monks, through a process of watching, learning, emulating and practicing.
v During my period of Dhamma-Vinaya studies, there was also a 'high-level' monk who would come and give us lectures and formal training. We would go to a community hall in groups to learn from his experience in Buddhist ideology, Pali language and Buddhist practices.
v I then completed Fourth Year at Primary Pali School in 1998-99. The purpose of the studies at Primary Pali School was to improve my skills in the Pali language and to understand in depth about Buddhism and Buddhist teaching.
v In 1999, after I completed my studies at Primary Pali school, I went to a different temple, called 'Chakrey Pagoda, in Battambang province. In July 1999, I went to another very large monastery in Kandal province called Buddh Mondol Dhammaduta or "Dhammaduta Association" in English. I was there about eight years.
v I then moved to Melbourne in August 2008 under the sponsorship of the Cambodian Buddhist Association of Victoria. Under the sponsorship of that Association, I served the Buddhist Society in the Buddhirangsi Pagoda in Melbourne, working alongside other monks, between 2008 and mid-2010. I continued to receive training and instruction from the most experienced monks within that temple during these years, specifically, these were my early years of learning how not only to study, meditate and practice, but how to teach Pali, Buddhism and to counsel others. This represented an important step in my spiritual and intellectual development and training as a Buddhist monk.
v From 6 July 2010 until 20 November 2010, I extended my Buddhist teaching and services to the Khmemararangsi Buddhist Temple of the ACT Inc. Community in Canberra.
v On or around 20 November 2010, I returned to Melbourne and then from 2011 to 2016, I have been serving the Cambodian Buddhist Association of Victoria as a Buddhist monk. I am now a senior monk within that temple and assist to train the young monks through a combination of informal guidance and formal teaching. I perform the blessings and rituals required for any ceremonies that we have. I teach the Khmer and Pali language classes to Cambodian children and adults, provide counselling to our congregants, teach illiterate elders to recite prayers, prepare prayer booklets, teach Dhamma classes to children, teach our congregants about Buddhist's principles on Buddhist Holy Days, teach Buddhist concentration methods to lay Buddhists, organize and participate in Buddhist Dhamma Group discussions of lay Buddhists, organize Buddhist Abhidarma Group Discussion for lay Buddhists, and organize and run wedding, funeral and other celebratory rituals.
v In December 2010, I attended English language classes ran by Springvale Neighbourhood House.
v Because I was directly involved with the Dhammaduta Association before coming to Australia, Venerable Sudhep Nan Abbot of the Buddharaingsi Temple and Venerable Sovann Srey President of Buddhist Council of Australia and New Zealand based at the Cambodian Buddhist Association of Victoria have sent me to continue the works at the Dhammaduta Association every year. Each year, I went there to oversee the projects for two to three months. My role was as the member of the Executive Commission of Dhammaduta Association and as the director managing founding field of Cambodian Buddhist Centre.
v I also involved as a volunteer for the Casey community Radio 97.7FM from 2011 to 2015 in promoting the Buddhist religion and community harmony. It happened on hour every Sunday from 2pm to 3pm.
vIn May 2012, I received Certificate of Participation in the Professional Development for Emotional Intelligence and Leadership Training Program for Teachers from Community Language School & Ethnic Schools Association of Victoria.
v In February 2015, I received Certificate of High Merit Scholar Wealth Monysaraphom from the Cambodian Government for having been physically and financially contributed to build Pasort Garden and other projects within the Dhammaduta Association.
v I intend to continue along my path of further education here in Australia, and I am going to continue to teach my knowledge to those who request to learn.
Also provided were the following relevant supporting documents:
·Copies of “expert opinions” from Dr Thong Thel, Dr Scott Pacey, Dr Corey Bell and Dr Adam Bowles, all of which were provided to the Department in support of the sponsor’s Minister of Religion Labour Agreement (MRLA).
·The Department’s advice that the applicant’s sponsor (the Cambodian Buddhist Association of Victoria Inc) was approved as a Temporary Activities Sponsor for the period 23 November 2016 to 23 November 2021;
·An application, dated 15 December 2016, for the approval of a MRLA in respect of the Cambodian Buddhist Association of Victoria Inc;
·The Department’s refusal of the above MRLA, dated 9 March 2017 on the basis that:
ØThe organisation structure and role description that you have provided indicates to the Department that the occupation you have put forward is not the senior leader/manager of the religious organisation. The occupation of Minister of Religion is a highly skilled, skill level 1 position and as such, is assessed rigorously for the purpose of a labour agreement. As a general rule, there will be no more than one Minister of Religion at each establishment, and other staff may be classified as Religious Assistants in line with their responsibilities, despite formal qualifications.
·An application, dated 20 March 2016, for the approval of a MRLA in respect of the Cambodian Buddhist Association of Victoria Inc, which included several expert opinions as noted above;
·The Department’s refusal to accept the above application, dated 27 March 2018 on the basis that:
ØThe Department will not consider a new labour agreement request while any immigration matter for a nominee is awaiting an outcome.
·A letter of support from Meng Heang Tak, MP;
·Confirmation of the sponsor’s endorsement for charity tax purposes; and
·A statement from the applicant’ sponsor’s accountant that the organisation has good financial standing.
On 14 October 2020, at the Tribunal’s request, advice was received from the applicant’s representative that they will be able to lodge a MRLA request in respect of the sponsor and applicant upon the grant of a 408 visa.
The Tribunal notes that the Department’s policy in relation to the further grant of 408 visas provides that:
Other relevant matters – maintaining ongoing residence in Australia
Under policy, it is not the intention that a visa holder remains in Australia on multiple grants of Subclass 408 visa for an extended period of time. If the grant of a Subclass 408 visa would result in an applicant exceeding four years stay in Australia as the holder of temporary visas, then the general policy position is that the period of stay granted should usually allow the holder only enough time to either:
- finalise their current assignment in Australia and depart
The Tribunal records that it is not bound to apply Department policy however, in the circumstances of this case, sees no reason to depart from it. As detailed above, two MRLAs were lodged with the Department on 15 December 2016 and 20 March 2016. In relation to the first which was refused because the application was assessed as being for positions of Religious Assistants, the Tribunal notes the following change in the Department’s policy advise:
Changes to the Minister of Religion Labour Agreement (MORLA) settings now allow religious institutions to sponsor overseas workers under the occupation Religious Assistant (ANZSCO 451816). This new initiative broadens visa sponsorship options that were formerly limited to the occupation of ‘Minister of Religion’.[1]
[1]< accessed 19 October 2020.
The second MRLA lodged the Department refused to accept on the basis that there was an ongoing migration matter.
Therefore, in considering the application of policy, to allow for the lodgement and consideration of a MRLA, it appears that the Department requires a sponsor in respect of whom such an agreement is lodged, not have a proposed employee about which there is an undetermined migration matter.
In this respect and having reviewed the extensive material that was provided in support of the last MRLA, and the representative’s professional assurances that another MRLA can be lodged immediately after a visa might be granted, the Tribunal is satisfied that a further MRLA will be submitted with the required supporting documentation including the business case, training plan, financial statements, position description, the permanent pathway statement and details of the applicant’s training and ordination.
In light of these factors, and having regard both to Department policy and the past two and one proposed MRLA and supporting documentation submitted, the Tribunal accepts that the applicant does satisfy cl.408.213(c) because this visa is only being sought for a short period to enable the MRLA to be considered and that, during the period of any visa granted, the applicant will continue performing his vocation as a monk of the Cambodian Buddhist Association of Victoria Inc.
While it is purely within the Department’s purview to determine the period of time for which such a visa might be granted, assuming the other criteria are met, the Tribunal’s view is that a period of no more than nine months be granted being sufficient time only to enable this MRLA to be determined (and allowing for any COVID-19 delays to the Department’s stated timelines) and are not for the purpose of prolonging the applicant’s stay in Australia for any further lengthy period of time.
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.
Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.
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 (Temporary Activity) visa:
·cl.408.213 of Schedule 2 to the Regulations.
Karen Synon
Member

[2020] AATA 5414

19 October 2020

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

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