Members Church of God International New South Wales (Migration)

[2022] AATA 1985

Members Church of God International New South Wales (Migration) [2022] AATA 1985 (3 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ronald Sarmiento

VISA APPLICANT:  Mr Jofre Kaalim Guevarra

CASE NUMBER:  1904701

HOME AFFAIRS REFERENCE(S):          BCC2019/105959

MEMBER:Alan McMurran

DATE:3 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Activity (Class GG) visa.

Statement made on 03 May 2022 at 1:31pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa – Religious worker – not satisfied that the visa applicant had appropriate qualifications and experience to undertake Religious Work – no current evidence or information available as to the current work performed by the applicant – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 408.219A, 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 15 February 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 is a 47 year old citizen of the Philipinnes who was offshore at the time of application residing in the United Arab Emirates (“UAE”) in Dubai. The applicant has applied for a Subclass 408 (Temporary Activity) visa, Religious Worker stream.

3. The applicant is sponsored by Members Church of God International New South Wales Inc (“the sponsor”), a charitable organisation registered in New South Wales. 

4. The applicant applied for the visa on 20 January 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).

5. Applicants must satisfy the common criteria in Subdivision 408.21 which include cl. 408.219A, which specifes that Subdivision 408.22 applies to the applicant. Subdivision 408.22 mandates that a clause in the Subdivision must apply to the applicant. It sets out alternative criteria for a number of specified workers, including ‘Religious worker’ cl. 408.223 sought to be relied upon by the applicant. No other of the alternative criteria as set out in the Subdivision is relied upon.

6. The review applicant was not represented in relation to the review by a migration agent or lawyer. The review applicant is the sponsor, by its authorised officer, Mr Sarmiento.

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

   Background

8. The applicant is a married Filippino citizen who has been working in the UAE since 2007.

9. The delegate in this case refused to grant the visa on the basis that the applicant could not satisfy cl 408.219A of Schedule 2 to the Regulations, because the delegate was not satisfied that the visa applicant had appropriate qualifications and experience to undertake Religious Work, and therefore the alternative criteria relied upon in the Subdivision, being subclause 408.223(d), was not met.

10. On 21 March 2022, the Tribunal sent a letter to the applicant with an invitation to provide information to update the Tribunal. No information had been received on behalf of the applicant since 28 February 2019. The Tribunal sought information of the applicant’s appropriate qualifications and experience to undertake religious work activity in Australia, and any other information to support and to update the application information already provided.

11. The applicant was asked to reply by 4 April 2022. The applicant did not respond and no reply was received to the request for information, which was sent to the email address provided, which was the address for the sponsor as authorised by the applicant. The address was updated by the sponsor on 3 November 2020, which was the address recorded by the Tribunal for Mr.Sarmiento.

12. Section 360(3) of the Act provides that the applicant is not entitled to appear before the Tribunal, where the applicant is invited in writing to give information, but does not give the information before the time for giving it has passed.[1]

    [1] S. 359C(1)

13. The Tribunal finds that the applicant was invited in writing to give information but did not so. The Tribunal is satisfied that the invitation was sent to the authorised address provided by and on behalf of the applicant at that time.

14. Accordingly, the Tribunal finds that the applicant has lost his entitlement to appear before the Tribunal and the Tribunal is proceeding to determine the application on the information presently available.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether the applicant satisfies cl.408.223(d), being the clause  the applicant seeks to satisfy under cl.408.219A.[2]

    [2] Subdivision 408.22 Alternative Criteria applies.

16. The Tribunal has available the Department’s file and the application, and multiple documents lodged in support on 20 January 2019, together with the submission to the Tribunal on 28 February 2019, comprising a document on the sponsor’s letterhead entitled “Employment Certificate” and dated 26 February 2019.

    ‘Religious worker’ requirements

17. The various clauses set out in Subdivision 408.22 of Schedule 2 to the Regulations represent alternative pathways to the grant of the visa. One of these clauses must apply to the applicant for the applicant to meet cl 408.219A, which is an essential requirement for the visa. In this case, the applicant seeks to satisfy the ‘Religious worker’ requirements in cl 408.223. The applicant has not claimed to meet any of the alternative requirements in the other clauses.

18. The Tribunal has not had an opportunity to engage at a hearing with the applicant, who remains offshore, and who has not taken the opportunity to respond to the Tribunal’s request for information, either directly, or by the sponsor on his behalf. No request has been made for an adjournment or extension of time. The Tribunal is limited to the information already provided and available at the time of decision.

19. The term ‘Religious worker’ is not a defined term in the Act or Regulations.

20. The Tribunal has proceeded to consider relevant requirements under the Regulations. If any one requirements in the relevant regulation, Subdivision 408.22 of Schedule 2 to the Regulations is not met, the Tribunal does not need to consider any further requirements.

    Religious activity – cl 408.223(c)

21. Sub-clause 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.

22. The Tribunal has had regard to the available information provided with the application, and the sponsor’s Employment Certificate submitted to the Tribunal. The certificate is executed by the Secretary-General of the sponsor in the Philipinnes and dated 28 February 2019.

23. It sets out the applicant’s base salary for his position then (2019) as a “Regular Church Worker” with allowances and states “income is assumed every after weekly Church gathering”. It says the applicant is responsible for “managing and monitoring locale Church assignment, prepares and submits reports on brethren status to the Zone servant and overseers Church organization activities within the locale level”.

24. There is no equivalent description for the role which might relate to an activity being performed in Australia. The Act and Regulations do not otherwise define “Religious Worker”. Taking the words at face value, the cetifcate’s description could be used to describe a volunteer or part time role in a church by a parishioner or any other member of a congregation. The description of the role as stated is not supported by a detailed description of daily or weekly activity to be undertaken and where, when and how such activity is to be performed by the applicant in Australia. The description is lacking in essential details, including payment of salary and role requirements.

25. As noted, the Tribunal would have sought information about the role so described with questions at a hearing, but which was not available.

26. The Tribunal places no weight on the certificate which in the Tribunal’s view does not disclose sufficient details about the full-time position proposed for the role of a ‘Religous Worker’ or the terms and conditions of employment for the applicant’s role in Australia, and does not describe the proposed ‘religious activity’ within Australia in perfoming the role. There is no available and current employment agreement for an Australian employee signed by the applicant and the sponsor and which would align with Australian employment law, and which would set out details of the tasks and activities anticipated.

27. With the application to the Department, the applicant provided a document styled “Certification” signed by the Secretary General on 13 November 2018, and which is very short. It simply says:

    “This is to certifty that BRO. JOFRE K. GUEVARRA was ordained by the Members Church of GOD International (MCGI) as Regular Worker in 2007 and is serving in the same capacity to the present.

    He completed his Worker’s Training in 2009. He served as a KNC Worker form 2004 to 2005, and was promoted as Half-timer in 2006 and ordained as Regular Church Worker in 2007.

    As a Regular Church Worker, Bro. Jofre Guevarra is responsible for managing and monitoring locale Church assignment, prepares and submits reports on brethren status to the Zone Servant and to the District Servant and overseers Church organization activities within the locale level.”

28. The Tribunal places no weight on this evidence as determinative of what religious work the applicant may be engaged for on a full-time basis with the sponsor, as activity within Australia. No evidence or information is produced of ‘managing or monitoring’ assignments, or ‘report’ which the applicant may have prepared and submitted on ‘brethren status’ or any other activity for the religious institution as part of his then employed role.

29. There is no updated information (since 2019) to illustrate the applicant’s current activities in Dubai, or the UAE, being his last reported residence, and whether and to what level of daily or weekly commitment relates to the work being performed as outlined in the certificate, as that of a Regular Church Worker. Updated information might have included the applicant’s current employment agreement (if any or updated) with the sponsor, evidence of current remuneration and over what period(s), and showing details of work currently performed and in the period from 2019 to May 2022, at the time of decision.

30. The Tribunal finds there is no current evidence or information available as to the current work performed by the applicant, and whether on a full-time or part-time basis, and whether that work directly serves the religious objectives of the sponsor as the religious institution.

31. The Tribunal can accept that the applicant has appropriate qualifications as submitted with the application and which demonstrate theological training over a number of years, as set out in his resume. But the same resume refers to unrelated experience from 2010 up to the time of lodgement in January 2019 in the field of sales and marketing as a ‘manager’. There is no other evidence or information in that period as to religious activity, training, or experience. The manager’s role described in the application does not indicate activites as set out in the sponsor’s provided employment certificates.

32. The application itself states the activity in which the applicant will be engaged in Australia is ‘Minister of Religion’ and which includes preaching in regular church services, prayer meetings and propagating ‘the true and everlasting Gospel’ as well as delivering ‘Ministerial and Local Workers’ Trainings’, and officiating with ‘Indoctrination, Baptism, Marriage counselling’ for 40 hours per week. The Tribunal finds it is not satisfied on the available information that these stated activites are the same as or those proposed and which align with the activites stated in the employment certficates provided from the Secretary General, or with the current work performed as described in the application. The activites described are entirely different in those submissions.

33. The differences are significant and may have been explained on examination by the applicant or the sponsor, but were not, either by upodating the Tribunal when invited to do so, or when the opportunity was provided for a hearing which the applicant lost. It is not the Tribunal’s role to speculate or make a case for the applicant. It must deal with the information before it.

    Summary

34. There is no employment agreement produced between the applicant and the Australian sponsoring religious institution which contains details of the work to be performed on a full-time basis, when, where, and how it is to be performed and how the applicant will be remunerated and for what hours of work and whether on a full-time basis.

35. No financial information has been provided, about the sponsor, and other than Emirates NBD  Bank statements of account in the name of the applicant. Those bank records do not identify or specify payments from the sponsor, and the Tribunal cannot determine from those records what payments may have been made by the sponsor or an overseas entity for engaging the applicant as a ‘religious worker’ full-time, as they refer only to ‘salary credit’ and relevant transaction numbering.

36. The Tribunal can accept as per the application completed for the Department that the sponsor intends to have the applicant work in a role as a ‘Religious Worker’, but there must be some available information to support the applicant’s engagement in the role, which as outlined, is nowehere else defined. The Tribunal finds there is insufficient information available to demonstrate the work to be performed and the manner of performance and which might support the stated intention.

37. The Tribunal finds for the above reasons that there is no available information which might meet the requirement that the applicant will be engaged on a full-time basis to work or participate in an activity in Australia that is non-profit in nature, and which directly serves the religious objectives of the sponsoring religious institution, as outlined in its certificates for his employment when set alongside the stated intentions in the application form.

38. The Tribunal notes that the delegate refused the visa application on the basis that ‘Religious Work’ was not the applicant’s ‘main area of occupation’. The delegate found the applicant was working then as a ‘marketing manager’ in 2019, and had not demonstrated previous work in a similar capacity as that proposed by the sponsor, either with an institution or similar institution overseas, or elsewherein Australia. The delegate determined the applicant therefore did not have the experience or appropriate qualifications to undertake activities as a Religious worker in Australia.

39. As the Tribunal has found as set out above that the applicant has not provided evidence or information as at the time of its decision that the applicant will be engaged full-time to work or participate in the activity sponsored, and which directly serves the religious objectives outlined by the sponsor for the religious institution, the Tribunal has not considered it necessary to determine whether the applicant has appropriate qualifications and experience to undertake the work as one of the other mandated requirements in cl.408.223 in the Tribunal’s view has not been met.

40. For these reasons, the Tribunal finds that the requirements of cl 408.223(c) are not met.

    Conclusion

41. In light of the above findings, the Tribunal is not satisfied that cl 408.223 applies to the applicant.

42. Accordingly, cl 408.219A is not met.

43. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

44. The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.

    Alan McMurran
    Member