Phrakhrusupatsarasopon (Migration)

[2018] AATA 451

Phrakhrusupatsarasopon (Migration) [2018] AATA 451 (28 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Phrakhrusupatsarasopon

CASE NUMBER:  1610474

DIBP REFERENCE(S):  BCC2016/1517939 BCC2016/44297

MEMBER:Katie Malyon

DATE:28 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 28 February 2018 at 10:37 am

CATCHWORDS
Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 (Temporary Work (Long Stay Activity)) – Religious Worker stream – Repeal of Subclass 401 visa – Expiry of nomination

LEGISLATION
Migration Act 1958, ss 65, 140GB, 351, 359AA
Migration Regulations 1994, r 2.75A, cl 401.212, 401.212

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 27 June 2016 to refuse to grant the visa applicant, Mr Phrakhrusupatsarasopon, a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Phrakhrusupatsarasopon applied for the visa on 20 April 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).  Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of the 4 alternative visa streams: the Exchange stream; the Sport stream; the Religious Worker stream; or, for visa applications made on or after 23 March 2013, the Domestic Worker (Executive) stream.

4. In the present case, Mr Phrakhrusupatsarasopon 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 on the basis that Mr Phrakhrusupatsarasopon did not meet cl.401.214 of Schedule 2 to the Regulations because the delegate was not satisfied that he genuinely intends to stay temporarily in Australia having regard to the fact that Departmental records confirm Mr Phrakhrusupatsarasopon has lived in Australia for more than 1,502 days (that is, more than 4 years) since grant of the first of his four Religious Worker visas on 16 June 2004. A copy of the delegate’s decision was provided to the Tribunal.

5. Mr Phrakhrusupatsarasopon appeared before the Tribunal on 11 December 2017 to give evidence and present arguments.  In addition, the Tribunal received oral evidence from Mrs Kim McSweeney representing his sponsor, Sunnataram Forest Monastery Inc (the Monastery) and Mr Phra Mana Viriyarampo, who is one of the Monastery’s 2 Abbots.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.  Mr Phrakhrusupatsarasopon was represented in relation to the review by his registered migration agent, who also attended the hearing.

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 the present case is whether the applicant meets cl.401.212 of Schedule 2 to the Regulations. Relevant provisions from the Regulations referred to in this decision are extracted in the Annexure to the decision.

8. The Tribunal notes changes to the temporary work visas scheme were introduced by the Migration Amendment (Temporary Activity Visas) Regulation 2016 including repeal of the Subclass 410 visa: however, applications lodged prior to 19 November 2016 are not affected.  Accordingly, the Tribunal has considered Mr Phrakhrusupatsarasopon‘s Subclass 401 visa application having regard to the law in place prior to 19 November 2016.

   Nomination requirements

9. Clause 401.212 requires that a Subclass 401 visa applicant is identified in a nomination of an occupation or activity approved under s.140GB of the Act, and that approval of the nomination has not ceased. The nomination must be have been made by a person who was, at the time of approval, a long stay activity sponsor, an exchange sponsor, a sport sponsor or, relevantly, a religious worker sponsor.

10. Consistent with the provisions of r.2.75A of the Regulations, a nomination ceases on the earliest of the following:

    ·the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor;

    ·12 months after the day on which the nomination is approved;

    ·3 months after the person’s approval as a sponsor ceases;

    ·if the person’s approval as a sponsor is cancelled under subsection 140M(1) of the Act, the day on which the person’s approval as a sponsor is cancelled; and,

    ·the day on which the applicant, or the proposed applicant, who was identified in relation to the nominated occupation, program or activity is granted a visa on the basis of the nomination.

11. Evidence before the Tribunal indicates the most recent nomination made by the Monastery in relation to Mr Phrakhrusupatsarasopon was approved on 27 June 2016. Accordingly, that nomination ceased one year later on 27 June 2017: r.2.75A(2)(b) of the Regulations.

    Hearing

12. At the commencement of the hearing, the Tribunal noted that, at time of decision, an applicant must be the subject of an approved nomination by a person who, at that time, was approved as a sponsor. Department records indicate that the Monastery was approved as a sponsor for 3 years from 6 April 2016 to 6 April 2019. Consistent with the provisions of s.359AA of the Act, the Tribunal put to Mr Phrakhrusupatsarasopon that, on 27 June 2017, the most recent nomination made by the Monastery ceased. The Tribunal also explained to Mr Phrakhrusupatsarasopon that, as a result of the repeal of the Subclass 410 visa, a new nomination cannot be lodged by the Monastery nominating him for a Subclass 401 visa and, as a result, he was incapable of meeting the requirements of cl.401.212 of Schedule 2 to the Regulations. The Tribunal observed it has no discretion and must apply the law.

13. Mr Phrakhrusupatsarasopon told the Tribunal that he had been working as the Abbot’s Assistant facilitating teaching in Buddhist philosophy for believers who come to the Monastery for spiritual guidance. He added that he was not aware of the impact of the November 2016 changes to the law on his Subclass 401 visa application. After a brief discussion with his representative, Mr Phrakhrusupatsarasopon stated that he ‘respects the law’ and requested an additional 48 hours in which to respond to the information put to him under s.359AA of the Act.

14. The Tribunal also took oral evidence from Ms McSweeney and Mr Viriyarampo.  They, too, indicated they were unaware of repeal of the Subclass 401 visa following introduction of the Migration Amendment (Temporary Activity Visas) Regulation 2016.  Ms McSweeney told the Tribunal that Mr Phrakhrusupatsarasopon has been a Monk since 1990 and has been working most sincerely in supporting Buddhist studies and practice at the Monastery, particularly for those who come to learn meditation.  She added that, such is the respect and admiration for Mr Phrakhrusupatsarasopon, the Monastery has requested he come back to Australia (from his own monastery in Thailand) on a regular basis to support the Abbot.  Ms McSweeney also told the Tribunal that she was not aware of the implications of the genuine temporary entrant requirement as part of a Subclass 401 visa application. 

15. Mr Phrakhrusupatsarasopon’s representative provided assorted documentation to the Tribunal at the hearing in relation to Mr Phrakhrusupatsarasopon as follows:

    ·Honourable Award Certificate of Merit for Dhamma Activities in Australia issued to Mr Phrakhrusupatsarasopon by the Monastery dated 3 February 2008;

    ·Honourable Award Certificate of Merit for Dhamma Activities in Australia issued to Mr Phrakhrusupatsarasopon by the Monastery dated 7 May 2014;

    ·Certificate issued by the Regional Sangha Council 16-17-18 (Dharmayut) dated 7 September 2003 confirming Mr Phrakhrusupatsarasopon completed Buddhist Study training at Wat Phramahathat Woramahawihan in Muang District, Thailand;

    ·Certificate of Meditation Training dated 27 May 2012 confirming Mr Phrakhrusupatsarasopon completed Meditation Training at Wat Phramahathat Woramahawihan in Muang District, Thailand;

    ·Certificate of Appreciation from Chumehon Wat Khao Lampa School dated 8 January 2012 issued to Abbot Phrakhrusupatsarasopon in appreciation for his fundraising efforts;

    ·Certificate of Appreciation from Cha-Uat School dated 30 April 2014 issued to Mr Phrakhrusupatsarasopon in appreciation for teaching Dharma; and,

    ·a letter addressed to the Tribunal from Abbot Wat Dhammadharo, the head of Thai Sanga in Australia.  In his letter, Abbot Wat Dhammadharo states that Mr Phrakhrusupatsarasopon is presently one of only 2 Monks with the qualifications and ability to help administer the 100 acre Buddhist community which is located near Berrima (on the southern tablelands in New South Wales).   

    In his role as the head of Thai Sanga in Australia, Abbot Wat Dhammadharo states that he is very aware of how difficult it is to sponsor Buddhist monks who have a sincere appreciation of the hard work and effort it takes to live and teach Buddhism in Australia.  He adds that many monks from Thailand come to Australia for a few months only because of the climate, cultural and other differences: they prefer to go to USA or Europe instead. 

    Abbot Wat Dhammadharo requests a compassionate outcome to allow Mr Phrakhrusupatsarasopon to continue his important work on a temporary basis as he still has a commitment as an Abbot of his own monastery in Thailand.

    Documentation lodged after the hearing

16. Mr Phrakhrusupatsarasopon’s representative forwarded to the Tribunal - within the additional time provided - a letter from Ms McSweeney in her capacity as Honorary Secretary of the Monastery. 

17. Ms McSweeney sincerely apologises for the situation that Mr Phrakhrusupatsarasopon finds himself in due to the repeal of the Subclass 401 visa and about which the Monastery did not fully understand.  She states that she has known Mr Phrakhrusupatsarasopon since 2004.  Ms McSweeney notes that the Monastery is a remote 100 acre monastery with only one permanent resident who needs support due to his workload, illness and the large number of Australians now seeking Buddhist and meditation instructions.  In this regard, Mr Phrakhrusupatsarasopon has demonstrated technical skill and expertise.  Ms McSweeney adds that, following the hearing and upon reflection, Mr Phrakhrusupatsarasopon has expressed his dedication and commitment to teaching Buddhism in Australia by permanently resigning from all his duties in Thailand.  In her opinion, this would be a great benefit to the Monastery and professional advice is being sought to assist Mr Phrakhrusupatsarasopon apply for permanent residence.

18. On the evidence before it, the Tribunal finds that Mr Phrakhrusupatsarasopon is not identified in a nomination of an occupation or activity approved under s.140GB of the Act which has not ceased. Therefore, cl.401.212 of Schedule 2 the Regulations is not satisfied. As this is a mandatory requirement for grant of a Subclass 401 visa, it is not necessary for the Tribunal to consider any of the other criteria for the visa.

19. Mr Phrakhrusupatsarasopon 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.

    Is this an appropriate case to refer to the Minister to make a more favourable decision?

20. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest to do so. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his power under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the Minister’s power is non-compellable in the sense that the Minister has no duty to consider whether to exercise the relevant power, whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

21. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest power under s.351 of the Act.[1]   Those guidelines indicate that the Minister will generally only consider exercising his public interest power in cases which are exhibit one or more unique or exceptional circumstances, or which are referred to the Department by the Tribunal.  The circumstances which, according to the Minister’s guidelines, may be unique or exceptional include where there are:

    “exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

    circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case”.

    [1] guidelines"#search-highlight-anchor

22. The Tribunal found Mr Phrakhrusupatsarasopon, Ms McSweeney and Mr Viriyarampo to be credible witnesses who genuinely regret the situation that Mr Phrakhrusupatsarasopon finds himself in following introduction of the Migration Amendment (Temporary Activity Visas) Regulation 2016 and expiry of the Monastery’s nomination. No formal request has been made to the Tribunal to refer this case to the Minister to intervene pursuant to s.351 of the Act. In the circumstances, and having highlighted the unique or exceptional circumstances referred to above that the Minister may consider if the Monastery and Mr Phrakhrusupatsarasopon wish to seek ministerial intervention, the Tribunal notes it is open to them to provide a submission and evidence to the Minister for his consideration.

    DECISION

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

    Katie Malyon

    
    Member

    Annexure - Extracts from the Migration Regulations 1994 prior to 19 November 2016

    r.2.75APeriod of approval of nomination - other visas
    
    (1)  This regulation applies to a nomination of an occupation, a program or an activity in relation to a visa and a person, as explained by the table.

Item	Visa to which the nomination relates	Person to whom the nomination relates
1	Subclass 401 (Temporary Work (Long Stay Activity)) visa	Holder Applicant Proposed applicant
2	Subclass 402 (Training and Research) visa	Holder Applicant Proposed applicant
3	Subclass 411 (Exchange) visa	Holder Applicant
5	Subclass 420 (Temporary Work (Entertainment)) visa	Holder Applicant Proposed applicant
6	Subclass 421 (Sport) visa	Holder Applicant
9	Subclass 428 (Religious Worker) visa	Holder Applicant
10	Subclass 442 (Occupational Trainee) visa	Holder Applicant

(2)  An approval of a nomination ceases on the earliest of:

(a)  the day on which Immigration receives notification, in writing, of the withdrawal of the
          nomination by the approved sponsor; and
    (b)  12 months after the day on which the nomination is approved; and
    (c)   3 months after the day on which the person’s approval as the kind of sponsor that could make
          the nomination ceases; and
    (d)  if the person’s approval as the kind of sponsor that could make the nomination is cancelled
under subsection 140M(1) of the Act - the day on which the person’s approval is cancelled;
           and,
    (f)   the day on which the applicant, or the proposed applicant, who is identified in relation to the
          nominated occupation, program or activity, is granted a visa on the basis of that nomination.

Schedule 2

….
Subclass 401 - Temporary Work (Long Stay Activity) 

401.212 

(1) The applicant is identified in a nomination of an occupation or activity approved under section 140GB of the Act.

(2)  The nomination was made by a person who was, at the time the nomination was approved:
     (a)  a long stay activity sponsor; or
     (b)  an exchange sponsor; or
     (c)  a sport sponsor; or
     (d)  a religious worker sponsor.

(3)  The approval of the nomination has not ceased under regulation 2.75A.

(4)  Either:
     (a)  there is no adverse information known to Immigration about the person who made the
          approved nomination or a person associated with that person; or
       (b)  it is reasonable to disregard any adverse information known to Immigration about the person
          who made the approved nomination or a person associated with that person.

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