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Mfabana (Migration)

Mfabana (Migration)

Case •

[2020] AATA 470

•

6 January 2020

Mfabana (Migration) [2020] AATA 470 (6 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thelma Mfabana
CASE NUMBER:  1706959
HOME AFFAIRS REFERENCE(S):         BCC2017/38527 CLF2017/32415
MEMBER:Alison Mercer
DATE:6 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Activity (Class GG) visa.
Statement made on 06 January 2020 at 12:17pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Special Programmes stream – did not meet Special Programmes criteria – potential sponsor not party to Special Program Agreement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 408.219A, 408.228
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 23 March 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 4 January 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.408.228 of Schedule 2 to the Regulations. The delegate found that the applicant had applied in the Special Programmes stream, but had not demonstrated that she met any of the Special Programmes identified in cl.408.228(2) to (5), which included Youth Exchange Program, School to School Interchange Program, School Language Assistants Program, and ‘Other Programs.’ The delegate noted that the applicant had been offered a position of volunteer community welfare worker for an Australian not for profit organisation, Carers of Africa Inc. The delegate further noted that this position did not fit within a Youth Exchange Program, a School to School Interchange Program, a School Language Assistants Program, and thus did not fall within cl.408.228(2) to (4). In relation to cl.408.228(5), ‘Other Programs,’ the delegate found that the program that the applicant sought to participate in had to be conducted by an organisation that was a party to a Special Program Agreement, but no evidence had been provided to indicate that Carers of Africa Inc was party to a Special Program Agreement. The delegate found that cl.408.228(5) was therefore not satisfied. The delegate further found that the applicant had not made any claims against the alternative streams for the subclass 408 visa and did not meet the requirements of any other stream.
The Tribunal received a review application from the applicant on 3 April 2017. It was accompanied by a copy of the delegate’s decision, and an authority by which the applicant appointed a registered migration agent, Mr E K Osei, as her representative and authorised recipient for correspondence.
The matter was constituted to a Tribunal Member on 31 October 2019.
On 4 November 2019, the Tribunal wrote to the applicant via her agent to invite her to attend a hearing on 27 November 2019.
On 20 November 2019, the Tribunal received a response from the applicant and her agent indicating that they would attend the hearing. They also provided:
·a document providing a history of Carers of Africa Inc;
·a letter dated 15 March 2018 from Seventh-day Adventist Schools (Victoria) Ltd to the applicant offering her casual employment as a Casual Relief Teacher, conditional on her holding registration with the Victoria Institute of Teaching; and
·employment variation agreement between the applicant and Estia Health dated 15 and 18 November 2019 for the position of part time Personal Care Assistant.
The applicant appeared before the Tribunal on 27 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Robert and Mrs Margaret Eales. The Tribunal also received oral submissions from the applicant’s agent.
The applicant told the Tribunal that since the visa had been refused, she had been working as a Casual Relief Teacher (CRT), registered with the Victorian Institute of Teaching, in various primary schools. This was on call, although she had a regular 1 day per week at the Seventh-Day Adventist school. She also held a Certificate III allowing her to work as a Personal Care Assistant (PCA) and worked regular part time hours at an aged care facility run by Estia Care as a PCA.
The applicant and her agent told the Tribunal that when the applicant lodged her subclass 408 visa in the Special Programmes stream, her sponsor, Carers for Africa Inc., had applied to be approved by the Minister as a party to a Special Program Agreement, and it was expected that it would be approved. However, this did not happen. The applicant and her agent conceded that Carers for Africa was not a party to a Special Program Agreement, and that the applicant appeared unable to meet any of the subcategories in cl.408.228. They reiterated that she had worked hard to acquire relevant qualifications and recognition allowing her to work as a CRT and a PCA in Australia, and she had been working in both these fields. She was also well settled here, and had friends in the Seventh-Day Adventist Church, including Mr and Mrs Eales, who had attended the hearing to support her. The applicant said that she had been in Australia since 2016.
Mr and Mrs Eales told the Tribunal that they could not comment on the applicant’s ability to meet the legal criteria for the subclass 408 visa, but wished to show their support for her, and they told the Tribunal that they had known her since 2016, as a hardworking and sincere person.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 requirements of cl.408.228 (the Special Programmes stream). The applicant has not claimed to meet cl.408.219A on any other basis.
Clause 408.228 contains a number of subparagraphs, at least one of which must be met by the applicant, as per cl.408.228(1). In summary, they are:
·cl.408.228(2) – Youth Exchange Program;
·cl.408.228(3) – School to School Interchange Program;
·cl.408.228(4) – School Language Assistants Program; and
·cl.408.224(5) – Other Programs.
The applicant and her agent did not claim to meet cl.408.228(2) to (4), and having reviewed these subclauses, the Tribunal is satisfied that the applicant does not meet the criteria for any of them.
The applicant originally sought to meet cl.408.228(5) – Other Programs. This subclause states that it applies to an applicant who seeks to enter or remain in Australia to participate in a program which has the objective of cultural enrichment or community benefit, and has been approved in writing by the Secretary for the purposes of the subparagraph, where that program is being, or will be, conducted by a person or organisation that is a community-based, non-profit Australian organisation that is lawfully operating in Australia, or a government agency. In the case of a community-based, non-profit Australian organisation that is lawfully operating in Australia, it must be party to a special program agreement with the Secretary in relation to the program (as per cl.408.228(5)(c)).
As conceded by the applicant and her agent, Carers for Africa, the organisation that proposed to sponsor the applicant, has not been approved as a party to a special program agreement with the Secretary in relation to its proposed program, as required by cl.408.228(5)(c). There is no evidence that any other organisation has been so approved in relation to the applicant, and she did not claim that one had been. The Tribunal so finds. Therefore, cl.408.228(5)(c) is not met, and cl.408.228(5) as a whole is not satisfied.
As noted above, the Tribunal has already found that cl.408.228(2) – (4) are also not met.
In light of the above findings, the Tribunal is not satisfied that cl.408.228 applies to the applicant.
Accordingly, cl.408.219A is not met.
As one of the essential requirements for the visa is not met, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.
Alison Mercer
Member

EXTRACT FROM PART 408, SCHEDULE 2 TO THE MIGRATION REGULATIONS 1994
Subclass 408—Temporary Activity
408.1—Interpretation
408.111
In this Part:
adverse supporter information :    see clause 408.112.
foreign government agency has the meaning given by subregulation 2.57(1).
government agency has the meaning given by subregulation 2.57(1).
net employment benefit :     an activity which a person seeks to enter or remain in Australia to carry out is taken to bring a net employment benefit to the Australian entertainment industry if:
(a) the person seeks to enter or remain in Australia to carry out the activity individually or in association with a group; and
(b) the Minister is satisfied that the carrying out of the activity would lead to greater employment of Australian citizens or Australian permanent residents (or both) than if a person normally resident in Australia undertook the activity.
passes the sponsorship test : a person passes the sponsorship test in relation to an applicant if:
(a) the person:
(i) is an approved sponsor; and
(ii) has agreed, in writing, to be the sponsor of the applicant; and
(iii) has not withdrawn that agreement; and
(iv) has not ceased to be the sponsor of the applicant; and
(b)  either:
(i) there is no adverse information known to Immigration about the person, or a person associated with the person; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the person, or a person associated with the person; and
(c) if the person is not a temporary activities sponsor—the application was made on or before 18 May 2017.
Note:    The sponsor may be, but is not required to be, the same as the sponsor (or applicant for approval as a sponsor) specified in the visa application.
passes the support test : a person or organisation passes the support test in relation to an applicant if:
(a) if requested by the Minister—the applicant produces a letter of support, from the person or organisation, which:
(i) identifies the event, activity or work for which the applicant seeks to enter or remain in Australia; and
(ii) sets out the duties of the applicant in relation to the event, activity or work; and
(iii) sets out the date or dates, and the location or locations, of the event, activity or work; and
(b) either:
(i) there is no adverse supporter information known to Immigration about the person or organisation, or a person associated with the person or organisation; or
(ii) it is reasonable to disregard any adverse supporter information known to Immigration about the person or organisation, or a person associated with the person or organisation.
sporting organisation has the meaning given by subregulation 2.57(1).
408.112
(1)  In this Part, adverse supporter information is any adverse information relevant to the suitability of a person or organisation to support an application for a Subclass 408 visa (otherwise than as an approved sponsor of the applicant), and includes information that the person or organisation, or a person associated with the person or organisation:
(a) has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subclause (2); or
(b) has, to the satisfaction of a competent authority, acted in contravention of such a law; or
(c) has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law; or
(d) is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or
(e) has become insolvent within the meaning of subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.
(2) The matters are the following:
(a) discrimination;
(b) immigration;
(c) industrial relations;
(d) occupational health and safety;
(e) people smuggling and related offences;
(f) slavery, sexual servitude and deceptive recruiting;
(g) taxation;
(h)  terrorism;
(i) trafficking in persons and debt bondage.
(3)  The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(a) to (e) must have occurred within the previous 3 years.
(4) In this clause:
competent authority has the meaning given by subregulation 2.57(1).
408.2—Primary criteria
Note 1:    The primary criteria must be satisfied by at least one member of a family unit. Any other member of the family unit who is an applicant for a visa of this subclass need satisfy only the secondary criteria.
Note 2:    All criteria must be satisfied at the time a decision is made on the application.
408.21—Common criteria
Note:    These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 408 visa.
408.211
The applicant does not intend to engage in activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or Australian permanent residents.
408.212
The applicant has adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.
408.213
The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(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.
408.214
The applicant does not hold:
(a) a permanent visa; or
(b) a temporary visa specified by the Minister in a legislative instrument made for the purposes of this paragraph.
408.215
The applicant has:
(a) adequate means to support himself or herself; or
(b) access to adequate means to support himself or herself;
during the period of the applicant’s intended stay  in Australia.
408.216
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4013, 4014, 4020 and 4021.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3) If the applicant has not turned 18, the applicant satisfies public interest criteria 4012, 4017 and 4018.
408.217
The applicant satisfies special return criteria 5001, 5002 and 5010.
408.218
Either:
(a) 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 applicant has engaged in such conduct in that period;
(ii)  the Minister considers that it is reasonable to disregard the conduct.
408.219
(1)  Subject to subclause (2), the applicant:
(a) will not be performing as an entertainer in Australia:
(i) under a performing contract; or
(ii) for non‑profit purposes; and
(b) will not be supporting an entertainer or a group of entertainers in Australia; and
(c) will not be directing, producing or taking another part in:
(i) a film, television or radio production that is to be shown or broadcast in Australia; or
(ii)  a theatre production or concert that is to be performed in Australia; or
(iii) a recording that is to take place in Australia.
(2)  This clause does not apply to an applicant who satisfies the requirements in clause 408.229 (Australian Government endorsed events) or 408.229A (entertainment).
408.219A
A clause in Subdivision 408.22 applies to the applicant.
408.22—Alternative criteria
Note:    A clause in this Subdivision must apply to the applicant in order for the applicant to satisfy the primary criterion in clause 408.219A.
408.221
Invited participant in an event
This clause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to participate in one or more events; and
(b) the applicant stated on the application form that the proposed length of stay in Australia did not exceed 3 months; and
(c) the applicant has been invited to participate in the event or events by a person or organisation; and
(d)  the person or organisation:
(i) is directly responsible for the event or events; or
(ii) has a formal role in preparing for, or conducting, the event or events; and
(e) the duties or tasks to be undertaken by the applicant are appropriate and reasonable, having regard to the requirements of the event or events; and
(f) either:
(i) the person or organisation is a temporary activities sponsor and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made—the person or organisation passes the support test in relation to the applicant.
408.222
(1) This clause applies to the applicant if subclause (2) or (3) applies to the applicant.
Sports trainee
(2) This subclause applies to the applicant if:
(a)  the applicant seeks to enter or remain in Australia to participate in sport by being trained by a sporting organisation (the relevant sporting organisation) that is lawfully operating in Australia; and
(b) the applicant is a sportsperson or adjudicator who:
(i) is currently competing or adjudicating at the Australian national level, or equivalent; or
(ii) is endorsed by the relevant peak sporting body in Australia or overseas as having the demonstrated potential to compete or adjudicate at the Australian national level, or equivalent; and
(c) the relevant sporting organisation has an international reputation for training elite sportspeople or adjudicators; and
(d) the relevant sporting organisation is not a sporting club that, as its primary activity, competes in sporting competitions below the Australian national level for the sport; and
(e) either:
(i) the relevant sporting organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
(ii)  if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the relevant sporting organisation passes the support test in relation to the applicant.
Elite player, coach, instructor or adjudicator
(3)  This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to be a player, a coach, an instructor or an adjudicator in relation to an Australian sporting team or sporting organisation; and
(b) the applicant has been invited to participate in the activity referred to in paragraph (a) by a sporting organisation (the relevant sporting organisation) that is lawfully operating in Australia; and
(c) the applicant has entered into a formal arrangement that provides for the applicant to participate in the activity referred to in paragraph (a) for a period specified in the arrangement; and
(d) the Minister has been provided with a letter of endorsement from the national sporting body responsible for administering the sport in Australia, certifying that the applicant has the ability to play, coach, instruct or adjudicate at the Australian national level; and
(e) either:
(i) the relevant sporting organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the relevant sporting organisation passes the support test in relation to the applicant.
408.223
Religious worker
This clause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to provide services as a religious worker; and
(b) the applicant has been invited to provide the services by a religious institution that is lawfully operating in Australia; and
(c) the applicant will be engaged on a full‑time basis to work or participate in an activity in Australia that:
(i) is predominately non‑profit in nature; and
(ii) directly serves the religious objectives of the religious institution; and
(d) the applicant has appropriate qualifications and experience to undertake the work or activity; and
(e) either:
(i) the religious institution is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
(ii)  if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the religious institution passes the support test in relation to the applicant.
408.224
Domestic worker
This clause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to provide services as a domestic worker; and
(b) the applicant has been invited to provide the services by a person or organisation that is:
(i) a foreign government agency that employs a person (the first visa holder) who holds a Subclass 403 (Temporary Work (International Relations)) visa in the Privileges and Immunities stream; or
(ii) a foreign organisation that is lawfully operating in Australia and that employs a person (the first visa holder) who holds a Subclass 457 (Temporary Work (Skilled)) visa; and
(c) the first visa holder is the national managing director, deputy national managing director or State or Territory manager of an Australian office of the foreign government agency or foreign organisation; and
(d) the applicant will be employed to undertake full‑time domestic duties in the private household of the first visa holder; and
(e)  the grant of the visa would not cause the number of domestic workers holding visas for employment in the household of the first visa holder to exceed 3 (including the applicant); and
(f) the applicant has turned 18; and
(g) the applicant has experience working as a domestic worker; and
(h) the person or organisation provides evidence that:
(i) the person or organisation has been unable to find a suitable person in Australia to undertake the duties; or
(ii) there are compelling reasons for employing the applicant; and
(i) the applicant is to be employed in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards; and
(j) either:
(i) the person or organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the person or organisation passes the support test in relation to the applicant.
408.225
Superyacht crew
This clause applies to the applicant if:
(a) the applicant is a member of the crew of a superyacht; and
(b) the applicant has turned 18; and
(c) either:
(i) the captain, owner or operator of the superyacht is a temporary activities sponsor, or a superyacht crew sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the captain, owner or operator of the superyacht passes the support test in relation to the applicant.
408.226
(1) This clause applies to the applicant if either subclause (2) or (3) applies to the applicant.
Research
(2) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to observe or participate in an Australian research project:
(i) at an Australian tertiary or research institution (the relevant institution) that is lawfully operating in Australia; and
(ii) in collaboration with academics employed by the relevant institution; and
(b) the applicant:
(i) is employed, or was formerly employed, as an academic at a tertiary or research institution; and
(ii) has a significant record of achievement in his or her field; and
(c) either:
(i) the relevant institution is a temporary activities sponsor, or a training and research sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the relevant institution passes the support test in relation to the applicant.
Research (student)
(3) This subclause applies to the applicant if:
(a) the applicant:
(i) is a student of a foreign educational institution; or
(ii) has graduated from a foreign educational institution during the 12 months preceding the making of the application; and
(b) the applicant seeks to enter or remain in Australia to undertake research at an Australian tertiary or research institution (the relevant institution) that is closely related to the course in which the student is or was enrolled at the foreign educational institution; and
(c) the relevant institution is lawfully operating in Australia; and
(d) either:
(i) the relevant institution is a temporary activities sponsor, or a training and research sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the relevant institution passes the support test in relation to the applicant.
408.227
Staff exchange
This clause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to work for an organisation (the first organisation) that is:
(i) an Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; or
(iii) a foreign government agency; and
(b) there is a written agreement between the first organisation and a foreign organisation (the reciprocating organisation) that provides for:
(i) the applicant to work for the first organisation in Australia for a period specified in the agreement; and
(ii) a named person, who is an Australian citizen or an Australian permanent resident, to have the opportunity to obtain experience with the reciprocating organisation for a specified period; and
(c) the exchange set out in paragraph (b) will be of benefit to both the applicant and the Australian citizen or Australian permanent resident; and
(d) the work that the applicant will perform for the first organisation will be in a skilled position; and
(e) either:
(i) the first organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the first organisation passes the support test in relation to the applicant.
408.228
(1) This clause applies to the applicant if any of subclauses (2) to (5) apply to the applicant.
Youth exchange program
(2) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to participate in a youth exchange program that has been approved in writing by the Secretary for the purposes of this paragraph; and
(b) the program is being conducted by a person or organisation that is:
(i) an Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; and
(c) the person or organisation is a party to a special program agreement with the Secretary in relation to the program; and
(d) either:
(i) the person or organisation is a temporary activities sponsor, or a special program sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the person or organisation passes the support test in relation to the applicant.
School to School Interchange Program
(3) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to participate in the School to School Interchange Program; and
(b) the School to School Interchange Program is being conducted, or is proposed to be conducted, by a person or organisation that is:
(i) a community‑based, non‑profit Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; and
(c) either:
(i) the person or organisation is a temporary activities sponsor, or a special program sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the person or organisation passes the support test in relation to the applicant.
School Language Assistants Program
(4) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to participate in the School Language Assistants Program; and
(b) the School Language Assistants Program is being conducted, or is proposed to be conducted, by:
(i)  a community‑based, non‑profit Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; and
(c) either:
(i) the person or organisation is a temporary activities sponsor, or a special program sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the person or organisation passes the support test in relation to the applicant.
Other programs
(5) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to participate in a program which:
(i) has the objective of cultural enrichment or community benefit; and
(ii) has been approved in writing by the Secretary for the purposes of this paragraph; and
(b) the program is being conducted, or is proposed to be conducted, by a person or organisation that is:
(i) a community‑based, non‑profit Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; and
(c) the person or organisation is a party to a special program agreement with the Secretary in relation to the program; and
(d) either:
(i) the person or organisation is a temporary activities sponsor, or a special program sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the person or organisation passes the support test in relation to the applicant.
408.229
Australian Government endorsed event
This clause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to undertake work directly associated with an event; and
(b) the event is specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(c) the applicant is in a class of persons specified in the instrument in relation to the event.
Note:    There is no requirement for a person or organisation to pass the sponsorship test or pass the support test in relation to the applicant.
408.229A
(1) This clause applies to the applicant if any of subclauses (2) to (8) apply to the applicant.
Performing in film or television production subsidised by government
(2) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to perform:
(i) as an entertainer under a performing contract for one or more specific engagements (other than non‑profit engagements) in Australia; and
(ii) in a film or television production that is subsidised, in whole or in part, by a government in Australia; and
(iii) in a leading role, major supporting role or cameo role, or to satisfy ethnic or other special requirements; and
(b) the Arts Minister, or a person authorised by the Arts Minister, has provided a certificate confirming that the relevant Australian content criteria have been met; and
(c) either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant; and
(d) the eligible sponsor or eligible supporter holds any necessary licences in respect of the production; and
(e) the eligible sponsor or eligible supporter has consulted with relevant Australian unions in relation to the employment or engagement of the applicant in Australia.
Performing in film or television production not subsidised by government
(3) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to perform:
(i) as an entertainer under a performing contract for one or more specific engagements (other than non‑profit engagements) in Australia; and
(ii) in a film or television production that is not subsidised in any way by a government in Australia; and
(iii) in a leading role, major supporting role or cameo role, or to satisfy ethnic or other special requirements; and
(b) the Arts Minister, or a person authorised by the Arts Minister, has provided a certificate confirming that:
(i) citizens and residents of Australia have been afforded a reasonable opportunity to participate in all levels of the production; and
(ii) the foreign investment, or the private investment guaranteed against the foreign returns by a distributor, in the production is greater than the amount to be expended on entertainers sponsored or supported for entry; and
(c)  either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant; and
(d)  the eligible sponsor or eligible supporter holds any necessary licences in respect of the production; and
(e)  the eligible sponsor or eligible supporter has consulted with relevant Australian unions in relation to the employment or engagement of the applicant in Australia.
Performing in productions not related to film or television
(4) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to perform as an entertainer under a performing contract that:
(i) is not related to a film or television production; and
(ii) is for one or more specific engagements (other than non‑profit engagements) in Australia; and
(b) the activity of the applicant referred to in paragraph (a) will bring a net employment benefit to the Australian entertainment industry; and
(c) either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant; and
(d)  the eligible sponsor or eligible supporter holds any necessary licences in respect of the activity of the applicant referred to in paragraph (a); and
(e) the eligible sponsor or eligible supporter has consulted with relevant Australian unions in relation to the employment or engagement of the applicant in Australia; and
(f)  the eligible sponsor or eligible supporter has provided an itinerary specifying the dates and venues for all performances.
Production roles other than as a performer
(5) This subclause applies to the applicant if:
(a)  the applicant will be directing, producing or taking another part (otherwise than as a performer) in:
(i) a film, television or radio production that is to be shown or broadcast in Australia; or
(ii) a theatre production or concert that is to be performed in Australia or
(iii)  a recording that is to take place in Australia; and
(b) the activity of the applicant referred to in paragraph (a) will bring a net employment benefit to the Australian entertainment industry; and
(c)  either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant; and
(d) the eligible sponsor or eligible supporter holds any necessary licences in respect of the activity of the applicant referred to in paragraph (a); and
(e) the eligible sponsor or eligible supporter has consulted with relevant Australian unions in relation to the employment or engagement of the applicant in Australia; and
(f)  the eligible sponsor or eligible supporter has provided an itinerary specifying the dates and venues for the production, concert or recording.
Support staff for profit
(6)  This subclause applies to the applicant if:
(a) the applicant will be supporting an entertainer or a body of entertainers in relation to a performing contract for one or more specific engagements (other than non‑profit engagements) in Australia by assisting a performance or by providing personal services; and
(b) the activity of the applicant referred to in paragraph (a) will bring a net employment benefit to the Australian entertainment industry; and
(c)  either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii)  if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant; and
(d) the eligible sponsor or eligible supporter holds any necessary licences in respect of the activity of the applicant referred to in paragraph (a); and
(e) the eligible sponsor or eligible supporter has consulted with relevant Australian unions in relation to the employment or engagement of the applicant in Australia; and
(f) the eligible sponsor or eligible supporter has provided an itinerary specifying the dates and venues for all performances.
Non‑profit engagements
(7)  This subclause applies to the applicant if:
(a)  the applicant will be:
(i) performing as an entertainer in one or more specific engagements that are for non‑profit purposes; or
(ii) supporting an entertainer or a body of entertainers in relation to one or more specific engagements that are for non‑profit purposes, by assisting a performance or by providing personal services; and
(b) either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant; and
(c) the eligible sponsor or eligible supporter has provided an itinerary specifying the dates and venues for all performances.
Documentary program or commercial for overseas market
(8) This subclause applies to the applicant if:
(a) the applicant will participate in the making of a documentary program or commercial that is for an overseas market; and
(b) either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant.
Eligible sponsor
(9) For the purposes of this clause, a person is an eligible sponsor if:
(a) the person is a temporary activities sponsor or an entertainment sponsor; and
(b) the person is:
(i) an Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; or
(iii) a foreign government agency.
Eligible supporter
(10) For the purposes of this clause, a person or organisation is an eligible supporter if the person or organisation is:
(a) an Australian organisation that is lawfully operating in Australia; or
(b) a government agency; or
(c) a foreign government agency; or
(d) an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
…

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Statutory Construction

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Citations

Mfabana (Migration) [2020] AATA 470

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