Kim (Migration)

This matter concerned an application for a Temporary Activity (Class GG) visa, Subclass 408 (Temporary Activity), in the religious worker stream. The applicant sought to remain in Australia as an Assistant Pastor for Sydney Jooan Church Incorporated. The core dispute revolved around whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was sought, as required by clause 408.213 of the Regulations. The decision was made by Karen McNamara, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant satisfied the criteria for the grant of the visa, with a particular focus on the genuine temporary entrant requirement under cl 408.213. This involved assessing whether the applicant had complied substantially with the conditions of her last substantive visa, whether she intended to comply with the conditions of the Subclass 408 visa, and any other relevant matters. The Tribunal was also required to consider the applicant's past visa history, including a cumulative stay of more than nine years, and the potential impact on her children's education.

The Tribunal's reasoning centred on the assessment of the applicant's genuine intention to stay temporarily. While the Tribunal found no issues regarding the applicant's compliance with past visa conditions or her intention to comply with future visa conditions, it ultimately concluded that the applicant did not meet the genuine temporary entrant requirement. The Tribunal noted that the applicant had worked as a religious worker since August 2015 and had requested to stay until September 2022, with an employment contract for two years post-visa grant. Despite these considerations, the Tribunal determined that this essential requirement for the visa was not met.

Consequently, as one of the essential requirements for the visa was not satisfied, the Tribunal was not required to consider any remaining criteria. The Tribunal affirmed the decision not to grant the applicant the Temporary Activity (Class GG) visa.