Ouk (Migration)

[2020] AATA 5549

Ouk (Migration) [2020] AATA 5549 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sothieng Ouk

CASE NUMBER:  1820998

HOME AFFAIRS REFERENCE(S):          BCC2018/1968830

MEMBER:Denis Dragovic

DATE:18 November 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 18 November 2020 at 9:55am

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – sponsor did not meet requirements of a religious institution – tax exemption – religious objectives of the sponsoring institution – Religious Worker requirements – religious institution – decision under review affirmed  

LEGISLATION

Income Tax Assessment Act 1997, s 50-51
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 408.219, 408.223; r 1.03

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 28 June 2018 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 May 2018. 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.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.408.223 of Schedule 2 to the Regulations because the applicant’s sponsor did not meet the requirements of a religious institution as defined in r.1.03, specifically that it is registered with the Australian Taxation Office as being income tax exempt.

4. The applicant appeared before the Tribunal on 25 September 2020 to give evidence and present arguments. Present at the hearing were the sponsor, the president of the Khmer Krom Buddhist Monastery of South Australia, Oukla Thach, and the immediate past president of the Monastery. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets cl.408.223 of the Regulations. In summary this requires that the applicant is seeking to remain in Australia to provide services as a religious worker, that she has been invited by a religious institution operating lawfully in Australia, that the activities she will undertake are predominantly non-profit in nature and directly serve the religious objectives of the sponsoring institution, that the applicant has the appropriate qualifications and experience and the religious institution passes the sponsorship test.

   ‘Religious worker’ requirements

8. 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.

9. The religious worker requirement has several subclauses. For cl.408.223 to be met each of the subclauses must be met. In this instance I have turned my mind first to cl.408.223(b).

   Invitation–cl.408.223(b)

10. 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. In this instance the inviting organisation is the Khmer Krom Buddhist Monastery of South Australia. In meeting the requirements of this sub-criteria the meaning of ‘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.

11. I asked the representative whether he was aware that part of the requirement was that the sponsoring organisation is required to meet the criteria listed in the above paragraph under (c) and (d). The representative acknowledged that he was and that he and the accountant having been trying to support the Monastery to get through the process.

12. I explained to the applicant that in addition to his qualifications and experience as a religious worker for him to obtain a visa it is required that the sponsor meets certain criteria. I explained that the organisation that is inviting him needs to be exempt from income tax. I explained that this could be shown by way of documentation from the Australian Taxation Office.

13. I noted that no supporting documentation was provided that would support the requirement that his sponsor was income tax exempt and asked whether he had any evidence to support the requirement that the Khmer Krom Buddhist Monastery is income tax exempt. The applicant did not have such evidence.

14. I spoke to the sponsor’s past president and current president and explained to them the requirements of the law and the criteria that must be met, specifically that the Khmer Krom Buddhist Monastery of South Australia be income tax exempt. I explained the importance of meeting the criteria and the consequences of them not being met, namely that the visa cannot be approved.

15. I provided the applicant six weeks to provide evidence of meeting cl.408.223(b).

16. The required documents were not provided to the Tribunal as of the date of the decision. For these reasons, I am not satisfied that the requirements of cl.408.223(b) are met.

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

18. Accordingly, cl.408.219A is not met.

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

20. At the hearing the representative also mentioned that he had the intention to pursue submissions to the Minister requesting his intervention. At the end of the hearing I left it open for the applicant through his representative to pursue this strategy with the Tribunal by providing information about what led the Monastery to be in the situation that it is now in.

21. In the post hearing submission in which the representative confirmed that the applicant did not have additional documents to submit within the time frame provided there was no submission on the background to the sponsor’s circumstances or a request for further engagement with the Tribunal to provide evidence in support of Ministerial intervention. As such I have not considered this further.

    DECISION

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

    Denis Dragovic
    Senior Member