Ngamkeatsup (Migration)

[2018] AATA 1117

Ngamkeatsup (Migration) [2018] AATA 1117 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Makamas Ngamkeatsup

CASE NUMBER:  1616279

DIBP REFERENCE(S):  CLF2016/64284

MEMBER:Saxon Rice

DATE:16 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 16 March 2018 at 12:47pm

CATCHWORDS
Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Maximum allowance of stay – IELTS test score – English language capability – History of obtaining visas –- Intent to apply for permanent visa – Not a genuine temporary entrant

LEGISLATION
Migration Act 1958, s 65, 363
Migration Regulations 1994, Schedule 2 cl 401.214

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520;
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429,
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49];
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168;
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14];
Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492
Visnumolakala v Minister for Immigration [2006] FMCA 1209

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 on 14 September 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 applied for the visa on 5 September 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of the four alternative visa streams: the Exchange stream, the Sport stream, the Religious Worker stream, or the Domestic Worker (Executive) stream. The Domestic Worker (Executive) stream is only available for visa applications made on or after 23 March 2013.

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. The delegate refused to grant the visa because the applicant did not meet cl.401.214 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia to carry out the occupation or activity for which the visa would be granted.

5. The applicant appeared before the Tribunal on 7 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Satit Tuamsombun, Secretary-General of the Dhammakaya International Society of Australia Inc.(DISA) and Mr Phra Pipatparn Ngamkeatsup, member of DISA and uncle of the applicant.

6. The applicant was represented in relation to the review by Mr Satit Tuamsombun.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Genuine temporary stay

8. 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.

9. At the Tribunal hearing, the applicant told the Tribunal that she first arrived in Australia on a tourist visa in January 2010. She told the Tribunal that following the completion of her studies in Thailand, she travelled to Australia shortly after. The applicant said that her parents owned their own business in Thailand and one of her brother’s also works in the family business while her other brother is a monk.

10. The applicant provided the Tribunal with a copy of the delegate’s decision and confirmed the details in the delegate’s decision record that she then applied for her first religious worker visa in September 2010, a second religious worker visa application in September 2012, a third religious worker visa in October 2014 and each of these applications was made onshore.

11. The applicant told the Tribunal that her work as a religious worker with the Dhammakaya International Society of Australia Inc. was as a teacher of meditation and to assist with various religious ceremonies. She said that she works approximately 52 hours per week and while she was not paid any wages, her accommodation, food and certain expenses (like travel) were met by the DISA. The applicant also told the Tribunal that her family was otherwise able to support her in Australia.

12. The applicant told the Tribunal that she understood the reasons for the department’s refusal of her visa. The applicant said that she did not think the decision was wrong because she had reached her maximum allowance (of stay in Australia on a temporary visa) but she wanted a bit more time to apply for a permanent visa. The applicant said that she formed the view that she wanted to apply for a permanent visa after she received her visa refusal.

13. The Tribunal explored with the applicant at length throughout the hearing what steps she had taken to apply for or be ready to apply for a permanent visa if this is what she intended to do, noting that it was approximately 18 months since she received her visa refusal. The applicant told the Tribunal that she understood that she can’t apply for a permanent visa because she does not think she will meet the English language criteria so she had not made any permanent visa applications. The applicant told the Tribunal that she had taken an IELTS test on 19 November 2016 that indicated that her English language was “just below” and other than a thirteen week English course in 2013-2014, she had not undertaken any further English language courses.

14. The Tribunal asked the applicant if there was any reason she had not undertaken a further course in the English language if she was concerned about this criteria in relation to an application for a permanent visa. The applicant then told the Tribunal that she thought the IELTS test was adequate and she did not want to undertake more study or repeat the same English course. The applicant later told the Tribunal that she had attempted to improve her English by herself in her spare time. The Tribunal noted the apparent contradiction in the applicant’s evidence that she was concerned about her English language capability in relation to whether she would satisfy a permanent visa but at the same time, thought that her IELTS test score was sufficient. The applicant said that she was not sure because she was waiting for her Tribunal hearing or decision and she was not sure whether she was able to submit any other applications while she had a review on foot but she did not discuss her options with the department.

15. The Tribunal asked the applicant what permanent visa she was eligible to apply for. The applicant told the Tribunal that she was eligible for the “religious one”. The applicant said that this visa was the same as her current one but permanent. The applicant also told the Tribunal that she did not know if she was eligible for this visa and she had spoken to a lawyer once after her visa was refused but the lawyer did not really give her any guidance on what her options might include.

16. Mr Tuamsombun told the Tribunal that the organisation had sponsored a number of religious workers from Thailand to obtain a temporary visa and he said that usually, after four years, they apply for permanent residency if that is what they want and the organisation supports them to do this. He also said that they had always been successful in their permanent applications until the department requirements for permanent visas became stricter in 2015 or 2016. Mr Tuamsombun said that two or three applications were then refused due to age or English language capability which were requirements that used to be exempt.

17. The Tribunal noted that Mr Tuamsombun had said these changes had occurred approximately 2 years ago and asked him what migration advice he had sought as a result. Mr Tuamsombun said that he spoke to a Thai temple in Melbourne who told him that it was now a requirement to have a labour agreement and that temple had received this migration advice. He said that he spoke to the Thai temple in Melbourne in early 2017 and since that time, he had not obtained any migration legal advice but he had spoken to a lawyer who was not focussed in the migration area who told him to look on the department website and “do it ourself”. The Tribunal asked Mr Tuamsombun what steps he then took. Mr Tuamsombun said that he thinks a lawyer is needed but he has not done this because it is not particular to the temple in Brisbane, it affects DISA as a national society.

18. Mr Tuamsombun also told the Tribunal that in mid-2017, he advised the DISA governing body that there was a need to do new immigration rules and he advised their temporary workers that there was a need to have adequate English. In relation to what support was provided to the applicant following the refusal of her visa and in light of her wanting to make an application for a permanent visa, Mr Tuamsombun said that the organisation did not obtain any formal migration advice regarding the applicant but he asked her to sit the IELTS test in order to ascertain her level of English which he thought was “quite close”. However, Mr Tuamsombun said that no further English languages courses were undertaken because they were not sure when the Tribunal hearing would be and they did not want to undertake a six month course if the applicant was not going to be successful at review.

19. The Tribunal asked Mr Tuamsombun when the DISA would be in a position to support further applications of its religious workers for permanent visas given the issue relating to the need for a labour agreement. Mr Tuamsombun told the Tribunal that he would need to find a lawyer who had been successful for other temples and he would need to get an agreement done for the whole Society which is a national organisation which he thought would require approximately 3 months. Mr Tuamsombun said that he had not yet spoken to other temples or successful lawyers. The Tribunal asked Mr Tuamsombun if 3 months was a realistic timeframe given he had not yet spoken to other temples, found a lawyer or managed to get the agreement of a national organisation. Mr Tuamsombun said that 3 months should be realistic if the lawyer has experience.

20. Mr Ngamkeatsup told the Tribunal that the applicant is a good worker and willing to do everything for the temple with good intent. He said that she has sacrificed a lot and everyone loves the applicant. Mr Ngamkeatsup said that she just wants a bit of time to apply for a permanent visa.

21. The Tribunal discussed the requirements of the legislation with the applicant and noted that the relevant policy also states that “If the grant of a GB-401 visa would result in an applicant exceeding four years stay in Australia then the grant should allow the holder only enough time to finalise their assignment in Australia and depart, or allow only enough time for them to apply for a another visa subclass if they are eligible and state their intention to do so.” The Tribunal asked the applicant how much time she was seeking in order to make an application for a permanent visa. The applicant told the Tribunal that she was seeking a visa for an additional 6 months and during that time she would take an English course and study English.

22. The Tribunal noted that it might place less weight on the applicant’s claim that she wants to make a permanent visa application given that she told the Tribunal that her decision to do this arose following her visa refusal and invited the applicant to comment. The applicant told the Tribunal that if she could apply for a temporary visa it would be easier and if she could, she would.

23. The Tribunal also noted that the applicant’s claim of wanting to apply for a permanent visa might undermine her claim that she genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted and invited the applicant to comment. The applicant said that she wants to continue working but because the law made her take this path, that is what is happening.

24. The Tribunal also noted that it might have difficulty accepting that the applicant, if genuinely wanting to make a permanent visa application and having identified her English language capability as a potential barrier to that application did not take steps to improve her English language capability due to her review application to the Tribunal. The applicant said that she didn’t take any course but she tried to learn herself because she was quite busy so when she had time, she tried to learn herself.

    Assessment

25. Regulation 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 an applicant’s compliance with previous visa conditions; whether the applicant intends to comply with the conditions to which the visa would be subject; and any other relevant matter.

26. While Tribunal accepts that there is no evidence to indicate that the applicant has not complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held was subject or that she would not comply with the conditions to which the Subclass 401 visa would be subject, the Tribunal has had regard to the fact that this is the applicant’s fourth application for a temporary visa.

27. The Tribunal notes that the delegate referred to the relevant policy in a manner that suggests that if the applicant had stated an intention to apply for another eligible visa that would permit a longer period of stay, then policy allows some discretion to grant a visa that would result in a stay which exceeds 4 years.

28. Accordingly, the Tribunal has considered the departmental policy guidelines in PAM3[1] to ascertain the policy intention underpinning the requirements in regulation 401.214, including subregulation 401.214(c).

    [1]     PAM3: Procedures Advice Manual 3 

29. Specifically, PAM3 indicates that in deciding whether an applicant genuinely intends a temporary stay in Australia, consideration should be given to whether the applicant is attempting to circumvent proper migration channels and use the Subclass 401 visa to maintain an ongoing residence in Australia. Policy also states that this particularly relevant when assessing an application for further stay in Australia by an applicant who already holds a Subclass 401 visa or an applicant who holds or has recently held one or more other temporary visas, as either a primary or secondary applicant. It is not the intention that a visa holder remains on a Subclass 401 visa for an extended period of time.

30. Notably, policy further indicates that if the grant of a Subclass 401 visa would result in an applicant exceeding four years stay in Australia (if the application on hand is granted) then the grant should allow the holder only enough time to finalise their assignment in Australia and depart, or allow only enough time for them to apply for a another visa subclass if they are eligible and state their intention to do so.[2]

    [2]     PAM3 - MIGRATION REGULATIONS - SCHEDULES > PAM – Sch2 Visa 401 – Temporary Work (Long Stay Activity) – See paragraph 27.2

31. However, whilst departmental policy in PAM3 may provide guidance, the Tribunal is not bound to follow it.[3] In particular, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations, and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[4]

    [3]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [4]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

32. The Tribunal understands that the applicant wants to continue working in Australia and acknowledges the evidence of witnesses that the applicant is a valuable member of her temple. The Tribunal finds that the evidence of both witnesses was generally consistent with that of the applicant and after careful consideration, the Tribunal draws no adverse inference from that evidence.

33. The issue in this case, as set out above, is that this visa application is the applicant’s fourth application for a temporary religious worker (Subclass 401) visa since September 2010. As set out in the delegate’s decision which the applicant provided to the Tribunal, the applicant’s first Subclass 401 visa was granted onshore for a period of 21 months, her second Subclass 401 visa was granted onshore for a period of 2 years and her third Subclass 401 visa was granted onshore for a further period of 23 months. The grant of these three visas amounts to a total period of 5 years and 8 months.

34. The Tribunal has considered the applicant’s history of obtaining visas to remain in Australia from September 2010 until this current visa application made on 5 September 2016. The Tribunal has also considered the applicant’s stated intention, that she now seeks her fourth temporary religious worker (Subclass 401) visa to be granted for a further 6 months to prepare herself to make a permanent visa application. The Tribunal considers the applicant’s stated intention of seeking to make a permanent visa application to be incongruent with her genuinely intending to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted.

35. The Tribunal also finds that the applicant’s stated intention of seeking a further Subclass 401 visa for a period to enable her to make a permanent visa application, only since her visa was refused, further undermines her claims.

36. For the sake of completeness, the Tribunal has also considered the applicant’s circumstances that she has family continuing to work and reside in Thailand and the applicant said they had been supporting her in Australia.

37. In this case, the Tribunal has had due regard to policy but in any event, the Tribunal finds that the applicant’s circumstances, do not meet the criteria relevant to cl.401.214.

38. Therefore, cl.401.214 is not satisfied.

    Other matters

39. The Tribunal notes that during the Tribunal hearing, Mr Tuamsombun told the Tribunal that the DISA organisation required approximately 3 months to be in a position to support further applications of its religious workers for permanent visas. The Tribunal also notes that later in the hearing, Mr Tuamsombun appeared to request that the Tribunal adjourn the review for a period of one month in order for DISA to demonstrate steps taken toward meeting the necessary sponsorship criteria.

1. As a result, the Tribunal has considered whether the applicant’s claims provide a basis for it to adjourn the review in the applicant’s favour under subsection 363(1)(b) of the Act prior to a decision.

2. In considering whether to exercise its discretion under subsection 363(1)(b) of the Act the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[5] and Manna v Minister for Immigration and Citizenship[6] where the Courts have held that it is not required to indefinitely defer its decision-making processes. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li[7] regarding the reasonableness of any request for an adjournment, as well as the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[8] which also considered this issue.

   [5] [2002] FCA 617

   [6] [2012] FMCA 28

   [7] [2013] HCA 18 (8 May 2013)

   [8] [2014] FCAFC 1 (4 February 2014)

3. In the present matter, the evidence before the Tribunal is that this is the applicant’s fourth application for a temporary religious worker visa since September 2010 amounting to the grant of visas totalling a period of 5 years and 8 months. As outlined above, The Tribunal finds that the applicant’s stated intention of seeking to make a permanent visa application to be incongruent with her genuinely intending to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted.

4. Accordingly, the Tribunal is of the view that it exercising its discretion to grant an adjournment of the review in order to allow time for DISA to take steps to sponsor its religious workers for permanent visas would be inconsistent with the Tribunal’s findings above.

   CONCLUSION

5. The applicant has only sought to satisfy the criteria for a Subclass 401 visa in the Religious Worker stream. No claims have been made in respect of the other visa streams. As requirements that must be met by a person seeking the visa in the Religious Worker stream have not been met, the decision under review must be affirmed.

   DECISION

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

   Saxon Rice
   Member