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 letter given to the applicants did not comply with the requirements of s 66(2)(d)(ii) of the Act and that the timeframe in which the applicants may apply for a review of the refusal decision with the Tribunal was not sufficiently clear. As such, the orders of the Federal Circuit Court took effect and the matter was remitted to the Tribunal on 28 November 2024, after the establishment of the Administrative Review Tribunal.
The first named applicant appeared before the Tribunal via MS Teams video link on 16 April 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicants were represented in relation to the review, and the representative attended the Tribunal hearing.
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; and
ii.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.
There are documents before the Tribunal confirming that the applicants are supported by the Saeum Church of Sydney based at 15 Antoine St, Rydalmere, NSW. These were provided to the Tribunal after the hearing. A review of publicly available information on the Australian Charities and Not-for-profits Commission charity register shows that Saeum Church Incorporated is a registered small charity based at 15 Antoine St, Rydalmere, NSW. Saeum Church provides congregational worship and other traditional religious activities, as well as a missionary support program. Its 2024 Annual Information Statement claims that the organisation has 3 full time employees and 1 part time employee. The first named applicant’s evidence is that Saeum Church is a Presbyterian Christian church. The Church has an active website (albeit fully produced in Korean, not English), an active YouTube channel, and an active Instagram page.
The Presbyterian Church of Australia website outlines the functions of the Presbyterian Church in Australia and confirms that churches falling under its umbrella are “individual congregations of people (including children), who gather in a particular locality to worship God, to be instructed from the Bible, to share in Christian fellowship together and to witness together to Jesus Christ”.
According to the records held on the Australian Business Register, Saeum Church Incorporated was first incorporated on 14 June 2019. It has been registered with the ACNC since that date, and has been granted a GST concession, income tax exemption, and FBT rebate from the Australian Taxation Office from 14 June 2019.
Based on all of this evidence, I am satisfied that the Saeum Church is a religious institution as defined in reg 1.03.
Directly serves the religious objectives
The phrase “religious objectives” is not defined in the Regulations, but following the ACNC charity register’s summary of Saeum Church’s purposes, I am satisfied that the religious objectives of this church are congregational worship and other traditional religious activities. This is an uncontroversial view of the objectives of Christian churches.
In this case, the first named applicant is providing several key functions to the Saeum Church. Unfortunately, the applicants do not have available any formal employment contracts, position descriptions or similar documents to support the claims that the first named applicant directly serves the religious objectives of the Saeum Church. However, the letter from Reverand Sang Bae Lee dated 29 April 2025 describes the first named applicant as an “indispensable” member of the Church’s ministry and worship team.
Reverand Lee states that the first named applicant is a “dedicated pianist and session leader of the worship team.” He has confirmed that worship is a central expression of the Presbyterian faith, and states that “musical gifts are critical in leading the congregation into heartfelt and reverent worship.” He describes the first named applicant as an “irreplaceable asset to our ministry” and requests the Tribunal to recognise her significant contribution to the church.
Having considered the objectives of the Presbyterian Church alongside the statements made by Reverand Lee in his support letter, I am satisfied that the first named applicant’s work with the provision of musical services and leadership of the worship team is an activity that directly serves the religious objectives of the Saeum Church. The first named applicant has stated that she leads the worship team for the church, which includes composing and arranging music for the various combinations of instrumentalists who serve in the worship team. The worship team is considered the most essential team to the services at Saeum Church, viewed with importance on par with that of the preaching minister.
The first named applicant confirmed that part of her role means she must prepare for each service offered at the church by studying the Bible readings ahead of time and ensuring that the music selected and used as part of the service complements those readings. She is responsible for creating the atmosphere and mood at each service. She is also responsible for mentoring the younger members of the group, ensuring they have appropriate music to play and ensuring they are enhancing their own connections with the Church.
Two of the youth participants in the worship team have provided statements of support for the first named applicant produced on the Church’s letterhead. They offer thanks to the first named applicant for her support and guidance, and one notes that she has “made worship feel real and meaningful.”
However, the first named applicant’s role is not limited to her leadership of the worship team and production of music. She also engages in ad hoc work in digital marketing and design for the church. During the hearing, the first named applicant confirmed that she has formal qualifications in design that she obtained in Korea, and so she is always willing to assist with design and marketing needs for the churches she has served at. She believes that her role leading the worship team takes up the majority of her time. She has not performed a breakdown of how her time is divided between the worship team and the design work that she engages in. However, she maintains that she believes the work with the worship team is her substantive work, and this is the work she gets paid to complete, whereas her work with digital marketing and design is usually voluntary.
Further to this, Reverand Lee provided the Tribunal with 2 other support letters for the first named applicant, each dated 24 March 2025, that outline the first named applicant’s service to the Saeum Church both as a “Church Accompanist” and for “Church Design Ministry.” While both these support letters outline the types of service the first named applicant provides to the church, neither reference any contract of employment or set times at which the first named applicant works (other than to note that she does provide musical services for all the church’s regular and special services).
The letter regarding her work in “Church Design Ministry” outlines details of her expected tasks such as designing and editing the weekly church bulletin, creating promotional materials for special events, and collaborating with church staff to ensure consistent and effective communication. Her 20 years of professional experience in design in South Korea is referenced. However, this support letter notes that she has only been working in the Church Design Ministry since 1 January 2025, whereas her work in the worship team dates back to December 2022.
The delegate had raised concerns that neither the first named applicant’s musical service or her design service constituted work that directly serves the religious objectives of the church that previously employed her. At review, I have concluded that the nature of the applicant’s role in the worship team at Saeum Church, as outlined above, does fall within the scope of directly serving the religious objectives of the church. However, I am not satisfied that the first named applicant’s service in the “Church Design Ministry” is directly serving the religious objectives of the church.
In reaching this conclusion, I rely on the main religious objectives of the Saeum Church as set out in their charity listing with the ACNC, being congregational worship and other traditional religious activities. The applicants have not made any case to demonstrate that work that may ordinarily be considered ancillary to those religious objectives – such as preparing information materials for church members and promoting the church via social media – is in fact directly serving the Saeum Church’s religious objectives. The preparation of a church bulletin or uploading church materials to the church’s YouTube channel or other social media platforms helps to support Saeum Church’s religious objectives of congregational worship. It is ancillary in nature. It is not congregational worship in the way that the provision of musical services is.
During the hearing, the first named applicant emphasised that most of her work for the Saeum Church is focused on the worship team, and that this takes up the vast majority of her hours given to the church’s service. It is the only basis on which she is currently remunerated by the church, which again emphasises that this is her core function within the organisation.
Conclusion
Considering all of the evidence presented, I am satisfied that the first named applicant’s paid work for the worship team at Saeum Church directly serves the religious objectives of the institution. Therefore, cl 408.223(c)(ii) is met.
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 2025
Representative for the Applicant: Mr Min Woo Yun