Mun (Migration)

[2020] AATA 282

Mun (Migration) [2020] AATA 282 (10 February 2020)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Chan Mi Mun
Mr Jungwon Seo
Miss Onyoo Seo
Mr Juwan Seo

CASE NUMBER:  1704037

DIBP REFERENCE(S):  BCC2016/3902885 CLF2017/22518

MEMBER:R. Skaros

DATE OF DECISION:  10 February 2020

DATE CORRIGENDUM

SIGNED:21 February 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The words ‘Therefore the applicant meets cl.408.219A’ should be added at the end of paragraph 29. 

The words ‘cl.408.219A of Schedule 2 to the Regulations’ should be added as a bullet point to paragraph 31.

R. Skaros
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Chan Mi Mun
Mr Jungwon Seo
Miss Onyoo Seo
Mr Juwan Seo

CASE NUMBER:  1704037

HOME AFFAIRS REFERENCE(S):           BCC2016/3902885 CLF2017/22518

MEMBER:R. Skaros

DATE:10 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 visa:

·cl.408.223 of Schedule 2 to the Regulations; and

·cl.408.219A of Schedule 2 to the Regulations.

Statement made on 10 February 2020 at 3:27pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – religious institution – sponsor ceased to be eligible for charity tax concessions – registration as charity cancelled by charities commission after financial non-reporting, but restored after relevant documents sent – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 359, 360(2)(a)

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cll 408.219A, 408.223(b)

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 Immigration and Border Protection on 16 February 2017 to refuse to grant the applicants Temporary Activity (Class GG) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 November 2016. 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). At least one member of the family unit must satisfy the primary criteria, comprising the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22. In this case, the applicant sought to meet the criteria for the Religious worker stream.

3. The delegate in this case refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl.408.223(b) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had been invited by a body that meets the definition of ‘religious institution’ as provided for in r.1.03. Relevantly, the delegate found that the applicant’s sponsor, the Sydney Elim Presbyterian Church (the Church) had ceased to be eligible for charity tax concessions.

4. The applicants provided a copy of the delegate’s decision record with the application for review. The applicants were represented in relation to the review by their registered migration agent.

5. On lodgement of the application for review, the applicant provided a letter dated 13 March 2017 issued by the Australian taxation Office in relation to the sponsor, Sydney Elim Presbyterian Church Incorporated, being endorsed for charity tax concession.  The applicant also provided an extract from the Australian Charities and Not-for-profits Commission (ACNC) charity register listing details of the Sponsor.

6. On 3 October 2019, the Tribunal wrote to the applicants pursuant to s.359 of the Act, inviting them to provide current information about the requirements in cl.408.223. On 11 October 2019, the Tribunal received submissions and supporting documents which have been considered further below.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets the requirements in cl.408.223 for the religious worker stream. The applicant has not claimed to meet any of the alternative requirements in the other clauses.

   ‘Religious worker’ requirements

   Purpose of stay–cl.408.223(a)

10. Paragraph 408.223(a) requires that the applicant seeks to enter or remain in Australia to provide services as a religious worker.

11. The Tribunal has before it a letter of support from Rev Jong Chan Kim indicating that the applicant’s role with the Church is that of Deacon-Music Director. The tasks of the position include conducting prayer services, preaching, preparing and conducting bible studies and assisting with the Church’s music and administrative functions in relation to praise and worship activities. The Tribunal is satisfied that the services that will be provided by the applicant are consistent with the principal activities of the sponsoring organisation and fall within the types of tasks performed by religious workers. On the basis of this evidence, the Tribunal is satisfied that the applicant seeks to remain in Australia to provide services as a religious worker. For these reasons, the Tribunal is satisfied that the requirements of cl.408.223(a) are met.

    Invitation–cl.408.223(b)

12. Paragraph 408.223(b) requires that the applicant has been invited to provide services as a religious worker by a religious institution that is lawfully operating in Australia. ‘Religious institution’ is defined in r.1.03 to mean a body:

    (a)the activities of which reflect that it is a body instituted for the promotion of a religious object; and

    (b)the beliefs and practices of the members of which constitute a religion due to those members:

    (i)believing in a supernatural being, thing or principle and

    (ii)accepting the canons of conduct that give effect to that belief, but that do not offend against the ordinary laws; and

    (c)that meets the requirements of section 50–50 of the Income Tax Assessment Act 1997; and

    (d)the income of which is exempt from income tax under section 50–1 of that Act.

13. The Tribunal has before it supporting documents, including a statement setting out the principal activities of the organisation, which includes conducting congregational and worship services for the religious adherents of the Church. The organisation is also involved in evangelism and education of its congregation and the wider community about their beliefs. The organisation is a Presbyterian Christian church. A variety of photographs relating to the Church’s religious activities were also provided.

14. The Tribunal has before it a letter issued by the Australian Taxation Office (ATO), on 30 March 2017, in respect of the sponsor indicating that the organisation is endorsed for charity tax concessions, including income tax exemptions. The Tribunal also received an ABN Lookup - current and historical details for the Sponsor and an extract from the Australian Charities Not-for-Profits Commission (ACNC) confirming that the organisation is registered as a charity and that charity reporting is up to date.

15. In relation to the concerns raised by the delegate in the decision record, Rev Kim explained that the Church has been registered as a charity organisation qualifying for ATO tax exemption since 2004. He explained that the church engaged an accountant to look after their financial affairs, including the required registration, ATO obligations and annual financial reporting. He stated that in 2014 the financial annual reporting had not been forwarded onto ACNC by the accountant and their registration was consequently cancelled.  Rev Kim explained that all relevant documents had since been sent to ACNC and their registration as a charity has since been restored.

16. The Tribunal has had regard to all the evidence before it and is satisfied that the organisation which invited the applicant to provide religious services is a ‘religious institution’ as defined in r.1.03. For these reasons, the Tribunal is satisfied that the requirements of cl.408.223(b) are met.

    Religious activity – cl.408.223(c)

17. Paragraph 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 which has invited them to provide services as a religious worker.

18. Having regard to the document entitled ‘Details of nominated position’ which sets out the main duties and tasks that will be carried out by the applicant on a full time basis of 38 hours per week, which includes conducing prayer and worship services, co-ordinating and directing music activities and providing pastoral care for members of the congregation, the Tribunal is satisfied that the applicant will be engaged in religious activity as required.

19. For the above reasons, the Tribunal is satisfied that the requirements of cl.408.223(c) are met.

    Qualifications and experience – cl.408.223(d)

20. Paragraph 408.223(d) requires that the applicant has appropriate qualifications and experience to undertake the proposed work or activity.

21. The applicant provided evidence of her qualifications and experience with the visa application, including a certificate from Kunsan National University evidencing her completion of a Bachelor of Music degree, completion of a spiritual growth training course and a certificate from the Youngshin Presbyterian Church in Korea indicating that the applicant served as the children’s choir conductor and musical instrument player for the Church’s main worship service. The Tribunal has also had regard to the letter of support from Rev Kim indicating that the applicant has been providing religious services with the sponsor.

22. The Tribunal is satisfied that the applicant has the appropriate qualifications and experience to undertake religious services for the sponsor as set out above. For these reasons, the Tribunal is satisfied that the requirements of cl.408.223(d) are met.

    Religious institution passes the sponsorship or support test – cl.408.223(e)

23. Paragraph 408.223(e) requires that the religious institution that has invited the applicant to provide religious services is either a temporary activities sponsor or a long stay activities sponsor and passes the sponsorship test in relation to the applicant. Alternatively, if the applicant was outside Australia when the application was made and the proposed length of stay as stated on the application form did not exceed 3 months, the religious institution must pass the support test in relation to the applicant.

24. In this case, having regard to the applicant’s location at the time the application was made and the proposed length of stay stated on the application form, the religious institution is required to be an approved sponsor of the relevant kind and pass the sponsorship test. In summary, a person ‘passes the sponsorship test’ if the following requirements are met (see cl.408.111):

    ·the person is an approved sponsor, and has agreed, in writing, to be the sponsor of the applicant, and has not withdrawn that agreement and has not ceased to be the sponsor of the applicant; and

    ·either there is no adverse information known to Immigration about the person, or a person associated with that person, or it is reasonable to disregard any such information (‘adverse information’ and ‘associated with’ have the meanings given in rr.1.13A and 1.13B); and

    ·if the person is not a temporary activities sponsor, the visa application was made on or before 18 May 2017.

25. With respect to each of the above, the Tribunal makes the following findings.

26. Departmental records confirm that the Church was approved as a Temporary Activity Sponsor on 9 November 2018. There is no evidence before the Tribunal which suggests that there is adverse information known to Immigration about the religious institution or any person associated with the religious institution.

27. On the basis of recent information received about the position, the Tribunal is satisfied that the sponsoring organisation continues to support sponsorship of the applicant and that the agreement has not been withdrawn. 

28. For the above reasons, the Tribunal is satisfied that the requirements of cl.408.223(e) are met.

    Conclusion

29. In light of the above findings, the Tribunal is satisfied that cl.408.223 is met by the applicant.

30. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

31. The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·cl.408.223 of Schedule 2 to the Regulations.

    R. Skaros
    Senior Member