Park (Migration) - [2025] ARTA 1021

PARK (MIGRATION) [2025] ARTA 1021 (22 MAY 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Jee Yea Park
Miss Ehwa Lim
Miss Haekyo Lim
Master Saeun Lim
Master Yoseop Lim
Mr Seung Ho Lim
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2446007

Tribunal:General Member M Sheargold
Place:Melbourne
Date: 22 May 2025
Decision:The Tribunal sets aside the decisions under review and remits the applications for Temporary Activities (Class GG) visas for reconsideration in accordance with the order that the first named applicant meets the following criteria for a Subclass 408 (Temporary Activities) visa:
·cl 408.223(c)(ii) of Schedule 2 to the Regulations.

Statement made on 22 May 2025 at 12:23pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Federal Court of Australia remittal – religious worker requirements – full-time work in Australia that directly serves the religious objectives of an institution – applicant changed employers – musical services and leadership of the worship team – decision under review remitted
LEGISLATION
Income Tax Assessment Act 1997 (Cth), s 50
Migration Act 1958 (Cth), ss 65, 66
Migration Regulations 1994, Schedule 2, cls 408.111, 408.219, 408.223; r 1.03
CASES
Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 234
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 March 2019 to refuse to grant the visa applicant a Temporary Activity (Class GG) Subclass 408 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 1 February 2019. The delegate refused to grant the visas on the basis that cl 408.219A of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) was not met because the first named applicant did not meet the requirements of cl 408.223(c)(ii) of Schedule 2 to the Regulations. The delegate was not satisfied that the first named applicant would be engaged on a full-time basis to work or participate in an activity in Australia that directly serves the religious objectives of the institution.
The application was originally considered and determined by the Tribunal (differently constituted) on 27 March 2020. At that time, the Tribunal found it had no jurisdiction to review the application as the application fee had not been paid during the prescribed period. The applicants appealed the decision to the Federal Circuit Court, as it then was, where their appeal was upheld applying the principles of Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 234. This was because the notification letter given to the applicants with the delegate’s decision was found to be unclear as to the timeframe in which the applicants could make their appeal to the Tribunal.
The Minister appealed the Federal Circuit Court’s decision and on 25 October 2024, the Full Court of the Federal Court of Australia dismissed the Minister’s appeal. The Full Court found that the notification…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Park (Migration)

Details

AGLC: Park (Migration) [2025] ARTA 1021
Case: [2025] ARTA 1021
Decision Date: 22 May 2025

CaseChat Overview and Summary

In Park, the Federal Court of Australia considered an appeal against the refusal of a Temporary Activity (Class GG) visa under subclass 408. The applicant, a religious worker, sought to provide musical services and leadership of the worship team in Australia, having changed employers during the application process. The primary concern of the court was whether the applicant met the criteria set forth in cl 408.223(c)(ii) of Schedule 2 to the Migration Regulations, which pertains to engaging in full-time work that directly serves the religious objectives of an institution. The court found that the Tribunal's decision was flawed and needed to be reviewed further.

The legal issues before the court involved the interpretation and application of the 'religious worker' requirements under cl 408.223 of Schedule 2 to the Regulations. The court had to determine whether the applicant sufficiently demonstrated that she would be engaged on a full-time basis in activities that directly serve the religious objectives of her new employer, a larger Korean church in Rydalmere. Additionally, the court assessed whether the new sponsor qualified as a 'religious institution' under r 1.03 of the Regulations.

The court concluded that the Tribunal had not properly considered the evidence and made a finding on whether the applicant would be engaged on a full-time basis in activities that directly serve the religious objectives of her employer. The court also noted that the Tribunal had not addressed the sponsor's status as a 'religious institution'. Given these deficiencies, the court set aside the decision and remitted the matter back to the Tribunal for reconsideration of the remaining criteria for the visa, including in relation to the secondary applicants.

The court's decision underscores the importance of thoroughly examining all aspects of an applicant's circumstances and evidence when assessing visa applications under the Migration Regulations. The case highlights the need for detailed consideration of the criteria set forth in cl 408.223, particularly the requirement for full-time engagement in activities that directly serve religious objectives. The court's remittal ensures that all relevant factors are appropriately evaluated in the reconsideration of the applicants' visa applications.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the first named applicant meets the requirement in cl 408.223(c)(ii) of Schedule 2 to the Regulations. She has not claimed to meet any of the alternative requirements in the other clauses under Subdivision 408.22 of Schedule 2 to the Regulations.‘Religious worker’ requirements The clauses set out in Subdivision 408.22 of Schedule 2 to the Regulations represent alternative pathways to the grant of a Subclass 408 visa. One of these clauses must apply to the first named applicant in order for her to meet cl 408.219A, which is an essential requirement for the grant of the visa. In this case, the applicant seeks to satisfy the ‘religious worker’ requirements in cl 408.223, and she has not claimed to meet any of the alternative requirements in the other clauses. Inter alia, the first named applicant must meet conditions regarding the purpose of her stay in Australia as well as having been invited to provide services to a religious institution, that the particular institution passes the sponsorship test, as well as demonstrating that she holds appropriate qualifications for the work that she will be engaged to undertake. One of the preliminary issues discussed with the first named applicant and her representative during the hearing was that Sanare Church led by Senior Pastor Soonsuk Hong had intended originally to act as the first named applicant’s sponsor, but at the hearing, the first named applicant stated she had taken on an identical role in a larger Korean church in Rydalmere. The representative noted that he was confident that the new sponsor could fulfil all the requirements and obligations required under cl 408.111, and noted that he would liaise with the Department regarding that should this matter be determined in the applicants’ favour. In this particular case, the application was refused on the basis that the first named applicant did not demonstrate that she would be engaged on a full-time basis to work or participate in an activity in Australia that is predominantly non-profit in nature and that directly serves the religious objectives of the religious institution. My attention at review is limited to the specific basis on which the delegate refused to approve the application, being that the first named applicant did not demonstrate that she would be engaged on a full-time basis to work or participate in an activity in Australia that directly serves the religious objectives of the religious institution that employs her.Religious institution It is prudent to begin by assessing whether the applicant’s sponsor is a religious institution. ‘Religious institution’ is defined in r 1.03 of the Regulations to mean a body:·the activities of which reflect that it is a body instituted for the promotion of a religious object; and·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; andii.accepting the canons of conduct that give effect to that belief, but that do not offend against the ordinary laws; and·that meets the requirements of s 50-50 of the Income Tax Assessment Act 1997 (Cth) (the ITAA); and·the income of which is exempt from income tax under s 50-1 of the ITAA.

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa, including in relation to the secondary applicants.DECISION The Tribunal sets aside the decisions under review and remits the applications for Temporary Activities (Class GG) visas for reconsideration in accordance with the order that the first named applicant meets the following criteria for a Subclass 408 (Temporary Activities) visa:·cl 408.223(c)(ii) of Schedule 2 to the Regulations.Date(s) of hearing: 16 April 2025Representative for the Applicant: Mr Min Woo Yun

Ratio Decidendi

Legal Principle Established

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