Moonpho (Migration)

[2018] AATA 2798

Moonpho (Migration) [2018] AATA 2798 (20 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  (Mr) Phra Pritoon Moonpho

CASE NUMBER:  1609841

DIBP REFERENCE(S):  BCC2016/1885825 CLF2016/41588

MEMBER:Marten Kennedy

DATE:20 June 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 20 June 2018 at 14:52pm

CATCHWORDS
Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 (Temporary Work (Long Stay Activity)) – Whether the applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted – Significant period of time spent in Australia – Compliance with previous visa conditions – Where permanent residency is being sought – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 401.214(c)

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 June 2016 to refuse to grant the visa applicant a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant (Phra Pritoon) applied for the visa on 27 May 2016. At the time of application, Class GB contained one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).

3. The criteria for a Subclass 401 visa are set out in Part 401 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. In the present case, the applicant is seeking the visa in the Religious Worker stream. This stream provides for the temporary entry of persons who will be full-time religious workers in Australia.

5. The delegate refused to grant the visa because the applicant did not meet cl.401.214(c) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia, in circumstances where the applicant had spent 5.2 years in Australia as the holder of a temporary visa for religious work, and noting Departmental policy that suggests that a temporary stay in Australia is one where a visa holder holds or has held recently one or more temporary visas that result in a cumulative stay of 4 years or less.

6. This matter was first heard on 5 April 2017. On that occasion, I received detailed submissions explaining the particular circumstances in which the visa applicant and his sponsor have found themselves.  Since 5 April 2017, I have extended unusual procedural indulgences to Phra Pritoon in light of the peculiar circumstances he and his religious organisation has found themselves in on the basis that it was convenient to allow collateral, albeit potentially relevant, applications and enquiries to proceed with the Department of Immigration.

7. Phra Pritoon is a senior Buddhist monk at the Wat Sri Rattana Wanaram Thai Forest Monastery.  He has been undertaking his duties at the Monastery for some time and has been promoted to a position of significant seniority within the hierarchy of that religion.

8. The Monastery, and Phra Pritoon, had planned to pursue a permanent stay for Phra Pritoon by applying for a subclass 187 visa.  As I understand it, this process was complicated by uncertainty as to the status of the relationship between the Monastery and Phra Pritoon (ie strictly not that of an employee), and it was decided to pursue a subclass 187 visa with another applicant in a similar situation.  If that was successful, the plan was to then pursue the same application with Phra Pritoon.  A change to relevant legislation with effect from 1 July 2015 however closed off this avenue for Phra Pritoon.

9. Instead, as I understand it, the Monastery and Phra Pritoon decided to pursue the approval of a Labour Agreement with the Department so that a subclass 186 visa could be applied for.  The Commonwealth refused to enter into a Labour Agreement, but I was persuaded that there was merit in adjourning this review to allow Phra Pritoon and the Monastery to agitate that matter further with the Department.

10. The Tribunal had difficulty keeping updated about developments in this regard, with both the applicant and the Department failing to respond for requests for information.  Ultimately, it was confirmed by the Department that a request for a Labour Agreement had been refused in June of 2016, and although I understand Phra Pritoon’s migration agent had wished to re-agitate that issue, I am satisfied that as at 5 April 2018 there was no outstanding request before the Department in relation to Phra Pritoon or the Monastery.  That remained the case at the time of the final hearing in this matter on 5 June 2018.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Genuine temporary stay

11. Clause 401.214 requires that an applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, having regard to:

    ·whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held was subject;

    ·whether the applicant intends to comply with the conditions to which the Subclass 401 visa would be subject; and

    ·any other relevant matter.

12. The applicant’s compliance with previous visa conditions was not put in issue by the delegate, and there is no material before me to put the compliance with visa conditions in issue in this review.  I accept and find that the applicant has complied substantially with the conditions to which his substantive visa and all subsequent bridging visas were subject.

13. As to whether the applicant intends to comply with the conditions to which the subclass 401 visa would be subject, I accept the representations made on behalf of the applicant at the previous hearing to the effect that the applicant would comply with any requirements of him by the Australian government, including any conditions applied to the grant of a subclass 401 visa.

14. As to other relevant matters, I have taken into account the detailed history of the visas held by the applicant, the duration of his stay in Australia to date undertaking religious work, and the efforts made by the applicant and on his behalf to secure a permanent visa for this work.

15. I raised with Phra Pritoon my concern that when I had regard to the amount of time he had spent in Australia as the holder of either a ‘temporary’ visa or a bridging visa it appeared that his stay in Australia was becoming if not permanent but increasingly indefinite.  I explained to Phra Pritoon that while I had no concerns arising out of his conduct in Australia to date in terms of compliance with previous visa conditions, and was confident on that basis that he would comply with whatever conditions might be imposed on a visa, I considered that his extensive stay, particularly in light of legitimate attempts made on his behalf to obtain a permanent visa, tended to prevent me from concluding that he genuinely intended to stay in Australia only temporarily.

16. Phra Pritoon explained to me that how long he stayed in Australia depended on many factors, including the wishes of the Thai community and official requirements.  He said he had come to Australia on the orders of his teacher to offer spiritual guidance.  He said whether he stays in Australia depends on what happens next, and he would go wherever his teacher sent him.

17. I accept Phra Pritoon’s evidence as to his intentions and motivations for being in Australia.  However, taking into account that Phra Pritoon has been in Australia for nearly 8 years on a series of temporary visas, and has explored a range of options to obtain permanent residency during that time, I am not satisfied that Phra Pritoon’s intended stay in Australia is capable of being characterised as temporary for the purposes of this visa application, and in that sense, I do not accept that Phra Pritoon genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted.  Having said that however, there is nothing about Phra Pritoon’s history in Australia or motivations for remaining in Australia that raise questions as to his ‘genuineness’ in the sense of honesty or legitimacy.  Phra Pritoon and his representatives have been open in their dealings with the Department and the Tribunal.

18. Ultimately however, I am not satisfied that Phra Pritoon intends to stay temporarily in Australia having regard to the relevant matters of his extensive stay in Australia to date and pursuit of permanent migration which now appears to be exhausted, at least on shore.

19. As Phra Pritoon does not meet the criteria for the grant of the visa, the visa must be refused.

    DECISION

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

    Marten Kennedy
    Member