SINGH (Migration)

[2020] AATA 4990

SINGH (Migration) [2020] AATA 4990 (4 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SUKHDEV SINGH

CASE NUMBER:  1723684

HOME AFFAIRS REFERENCE(S):          BCC2017/1431227 CLF2017/107038

MEMBER:Denis Dragovic

DATE:4 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

·cl.408.223 of Schedule 2 to the Regulations.

·cl.408.219A of Schedule 2 to the Regulations.

Statement made on 04 November 2020 at 8:34pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Religious worker – purpose of stay – granthi (Sikh priest) – invitation by a religious institution – religious activity – engaged on a full-time basis – non-profit in nature – qualifications and experience – religious institution passes the sponsorship or support test – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 408.219A, 408.223

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 and Border Protection on 14 September 2017 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 19 April 2017. 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 of 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 there was no evidence that the position the applicant was being sponsored for was full time nor was a detailed job description provided. The Department provided an opportunity for the sponsor to respond to these concerns as well as to provide all of the other necessary material such as a police and health check. The sponsor through their agent proceeded to respond to the requests but omitted to provide information on the role being full time. Without the necessary information, a document stating that the position was full time, the delegate proceeded to refuse the visa.

4. The applicant appeared before the Tribunal on 1 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Muhambir Singh Girewal, President of the Guru Nanak Society of Australia. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The Tribunal exercised its discretion to hold the hearing by video conference but on the day of the hearing the applicant was having trouble establishing a video connection. With the agreement of the applicant and his representative the hearing proceeded as a telephone hearing. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 he has been invited by a religious institution operating lawfully in Australia, that the activities he 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

9. 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.

   Purpose of stay–cl.408.223(a)

10. Paragraph 408.223(a) requires that the applicant seeks to enter or remain in Australia to provide services as a religious worker.

11. I asked the applicant to explain his reason for coming to Australia and remaining in Australia. He said that he had previously left India to perform the role of a granthi (Sikh priest) in Malaysia as they had a shortage there. While in Malaysia he was invited by an Australian Sikh society, Gurmut Parchar Sewa Society, to come to Australia. They initially sponsored him for a few short term stays during which time he performed the role of granthi. He explained that they knew him through their work in India.

12. The applicant stated that during these stays he was approached by the President of the Guru Nanak Society of Australia. He chose to accept the offer made by the Guru Nanak Society because in his words, ‘they all work for one religion’. 

13. The applicant said that he aspires to carry on doing his work as a granthi, preaching to the people and bringing them together through his music. He explained the importance of music in his faith arises from the Guru Granth Sahib (holy text) being written in rhymes and as such it should be performed with music.

14. The applicant said that he has spent all of his adult life either studying to perform the role of granthi or being a granthi. He said that he has travelled and served in various communities. He aspires to continue to fulfil his role as a religious man.

15. The applicant has committed himself to his religion since beginning his studies. He has travelled abroad, undertaken additional studies and performed the duties of a granthi.

16. The applicant’s pathway to seeking a visa to remain as religious worker is plausible. He was invited to Australia while in Malaysia in a similar role. He met the current sponsors through his connections while in Australia. That his career has been dedicated to practicing and teaching the Sikh faith further supports his claims of intending to remain in Australia for the purpose of working as a religious worker.

17. As such I find that the applicant is seeking to remain in Australia to provide services as a religious worker. For these reasons, the Tribunal is satisfied that the requirements of cl.408.223(a) are met.

    Invitation–cl.408.223(b)

18. 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. ‘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.

19. Although the Guru Nanak Society of Australia is registered with the ACNC to provide ‘culture and arts’ I am satisfied that it is a body instituted for the promotion of a religious object for the following reasons. Guru Nanak, from whom the society takes its name was the founder of Sikhism. The website of the Society lists the days when the religious community gathers for the Sikh religious rituals. The temple was opened officially in 2005 and is now open 7 days a week for morning and evening prayers. While it is vexing that the Society chose to register their activities as culture and the arts rather than religion I am satisfied that it was established for the promotion of a religious object.

20. I am also satisfied that the Sikh religion is a religion that believes in a supernatural being, a God, who is not separate from the world but fully present in every aspect of creation[1] and that the canons of conduct do not offend against the ordinary laws of Australia.

    [1] Simran Jeet Singh, ‘Who are the Sikhs and what are their beliefs?’, The Conversation, 9 August 2018 >

    Section 50–50 of the Income Tax Assessment Act 1997 includes, multiple alternative criteria, of which one is the requirement for ‘a physical presence in Australia and, to that extent, incurs its expenditure and pursues its objectives principally in Australia.’ The Guru Nanak Society of Australia is registered with the ACNC to operate in South Australia and Malaysia. In reviewing the profit and loss statement for the 2017-2018 financial year (the most recent available) the majority of expenditure appears as being repayment of interest in Australia, rent in Australia and payment of utilities. As the society is based in South Australia and expends the majority of its expenditure in Australia I am satisfied that it meets r.1.03(c).

21. The applicant submitted the sponsor’s notice of endorsement for charity tax concessions which included notice that the applicant is income tax exempt since 2005. This information was cross checked by the Tribunal to ensure its currency. As of the date of this decision the sponsor remains registered as income tax exempt.

22. For these reasons, the Tribunal is satisfied that the requirements of cl.408.223(b) are met.

    Religious activity – cl.408.223(c)

23. Paragraph 408.223(c) requires that the applicant will be engaged on a full-time basis to work or participate in an activity in Australia that is predominately non-profit in nature and directly serves the religious objectives of the religious institution which has invited them to provide services as a religious worker.

24. The applicant provided a copy of his contract as well as a detailed breakdown of the daily duties of a Granthi which he would be performing. These included:

    ·Morning service from 6am – 9am which includes the ceremonial opening of the Guru Granth Sahib, recitation of morning prayer followed by devotional singing of the hyms

    ·Evening service from 5pm – 8pm which includes the recitation of the evening prayer, devotional singing and the closing ceremony of the Guru Granth Sahib

    ·On Fridays teaching to students including the harmonium and the composition of the hyms

    ·On Sunday the mid day prayer from 10am – 12pm.

25. I am satisfied that this schedule amounts to being engaged in a full-time basis and is non-profit in nature.

26. As for whether these activities serve the religious objectives of the religious institution I turn to independent information produced by Dr Dhillon, Director of Religious Affairs, Gurdwara Guru Nanak Darbar, in the United States,[2] to understand what the religious objects are within the Sikh religion:

    A Granthi deals with a variety of aspects of the Granth [the principal sacred text of Sikhism] – its Parkash (installation every morning at dawn), Semapti (its closure at dusk), Paath (its reading, rendering, its interpretation, its teaching, and the propagation of its messages to the Sangat (congregation.). He/She is in attendance to the Granth at all times.

    A Granthi is also a spiritual leader. He /She leads congregation in prayer, performs the Kirten (musical rendition of the Scriptures), Katha (Discourses), Ardas (Prayers), and inspires and provides spiritual direction and upliftment to the Sangat (congregation).

    A Granthi is also a religious minister. He/She performs all the Sikh ceremonies from birth, baptism and death.

    A Granthi is a spiritual counselor. He/She provides spiritual counseling to individuals and families.

    Finally, a Granthi is a teacher and role model. He/She is expected to spend a good deal of time teaching children, young adults and adults. He/She is to teach Kirten (spiritual music), Tabla (spiritual rhythms) Gurbani (poetry of the scriptures) and Punjabi (the language of the Holy Books).

    [2] >

    I note that the applicant’s job description includes those roles described above such as morning and evening ceremonial services and teaching of students. At the hearing the applicant also added that in his previous Granthi roles in India and Malaysia he had performed the necessary rituals associated with birth and death. As his job description is aligned with what is expected of a Sikh granthi I am satisfied that his activities will serve the religious objectives of Sikhism.

27. Based upon the role the applicant has describe and was detailed in his contract and how it aligns with independent information of the role of a Sikh ‘priest’ the Tribunal I am satisfied that the requirements of cl.408.223(c) are met.

    Qualifications and experience – cl.408.223(d)

28. Paragraph 408.223(d) requires that the applicant has appropriate qualifications and experience to undertake the proposed work or activity.

29. The applicant was born into a Sikh family and claims to have been interested in the religion from an early age. The applicant undertook formal studies in the Gurmat Sangeet Academy[3] from 2004-2007 where he was trained by Shaheed Baba Deep Singh. He graduated in devotional singing.

    [3] Gurmat Sangeet Academy >

    From 2007-2009 he remained in India performing the rituals of a granthi. From  2009-2011 he was in Malaysia also serving in a Sikh temple as they did not have enough granthis in the country. He then returned to India where he stayed until until 2014 before coming to Australia in 2015. In 2014 he completed a certificate in classical vocal from the Pracheen Kala Kendra school.

30. The applicant provided a letter of reference from the Labuan Sikh Society in Malaysia which stated that the applicant had been reciting the Guru Granth Sahib hyms to their congregation from 2009 to 2011.  It added the he was a ‘good, obedient and dedicated Granthi’.

31. The sponsor, the President of the Guru Nanak Society of Australia, noted that the applicant was qualified for the role. Based upon the applicant’s education and experience I am also satisfied that the applicant is qualified for the role.

32. For these reasons, the Tribunal is satisfied that the requirements of cl.408.223(d) are met.

    Religious institution passes the sponsorship or support test – cl.408.223(e)

33. Paragraph 408.223(e) requires that the religious institution that has invited the applicant to provide religious services is either a temporary activities sponsor or a long stay activities sponsor and passes the sponsorship test in relation to the applicant.

34. In this case, having regard to the applicant’s location at the time the application was made and the proposed length of stay stated on the application form, the religious institution is required to be an approved sponsor of the relevant kind and pass the sponsorship test. In summary, a person ‘passes the sponsorship test’ if the following requirements are met (see cl.408.111):

    ·the person is an approved sponsor, and has agreed, in writing, to be the sponsor of the applicant, and has not withdrawn that agreement and has not ceased to be the sponsor of the applicant; and

    ·either there is no adverse information known to Immigration about the person, or a person associated with that person, or it is reasonable to disregard any such information (‘adverse information’ and ‘associated with’ have the meanings given in rr.1.13A and 1.13B); and

35. The sponsor provided the ‘Sponsorship approval notice’ for the Guru Nanak Society of Australia which extended through to 4 December 2022. The Society is approved as a temporary activity sponsor for the applicant’s class of visa. As such I am satisfied that they are an approved sponsor.

36. The President of the Guru Nanak Society provided a letter which stated that the Society agreed to be the sponsor of the applicant for the role of granthi (religious worker) as such I am satisfied that the applicant has been invited to provide religious services and the sponsor has agreed in writing to sponsor the applicant.

37. For these reasons, the Tribunal is satisfied that the requirements of cl.408.223(e) are met.

38. In light of the above findings, the Tribunal is satisfied that cl.408.223 applies to the applicant. Accordingly, cl.408.219A is met.

39. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

40. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    • cl.408.223 of Schedule 2 to the Regulations.
    • cl.408.219A of Schedule 2 to the Regulations.

    Denis Dragovic
    Senior Member