Som (Migration) - [2020] AATA 2841

Som (Migration) [2020] AATA 2841 (17 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Makara Som
CASE NUMBER:  1712011
HOME AFFAIRS REFERENCE(S):         BCC2016/4281429 CLF2017/42601
MEMBER:Alison Mercer
DATE:17 April 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.408.111 of Schedule 2 to the Regulations; and
·cl.408.213 of Schedule 2 to the Regulations.

Statement made on 17 April 2020 at 4:14pm
CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – sponsorship approval ceased but reinstated – genuine temporary entrant – maintaining ongoing residence in Australia – council approval for new temple – disregarding adverse information – Tribunal reinstated review application – compliance with visa conditions – non-hierarchical structure of Buddhist temple – settled intention to apply for permanent visa – adverse consequence for employment or training for Australians – continued shortage of Buddhist monks – Minister of Religion Labour Agreements (MORLA) – decision under review remitted
LEGISLATION
Migration Act 1958, ss 48, 116, 362
Migration Regulations 1994, Schedule 2 cls 408.111, 408.213, 676.211; r 1.13
CASES
Minister for Immigration and Border Protection v Khannai [2016] FCA 142
Sivaguru Kanapathy Saravanan v Minister for Immigration and Multicultural Affairs [2002] FCAFC 81
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 May 2017 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 19 December 2016. 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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.408.111 and 408.213 of Schedule 2 to the Regulations. The delegate noted that cl.408.111 required that the applicant had an approved sponsor who passed the sponsorship test, but found the applicant’s sponsor’s (Wat Monirangsi The Institution of Buddhist Education and Development) approval had ceased on 3 February 2017. The delegate further noted that cl.408.213 required that the applicant had a genuine intention to remain in Australia temporarily only, but found that the applicant’s visa history indicated that he was seeking a visa to maintain ongoing residence in Australia, and not to stay temporarily. In reaching this conclusion, the delegate took into account the applicant’s immigration history. The delegate found that the applicant had come to Australia in December 2012 as a subclass 428 (Religious Worker) visa holder, and had held this and other temporary visas connected with religious work for over 4 years as at the time of the delegate’s assessment.
The Tribunal received a review application from the applicant on 6 June 2017. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Karyn Anderson, as his representative and authorised recipient for correspondence.
The matter was constituted to a Tribunal Member on 31 October 2019. On 4 November 2019, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 27 November 2019. The hearing invitation noted that if the applicant failed to attend, without providing a reason or seeking an adjournment, his review application might be dismissed.
Neither the applicant nor his agent attended the hearing on 27 November 2019.
On 28 November 2019, the Tribunal made a decision to dismiss the review application pursuant to s.362B(1A)(b) of the Act. The Tribunal notified the applicant of this decision on the same date, and provided information to him indicating that, amongst other things, if he wished to apply for reinstatement of his review application, he should do so by 12 December 2019.
On 12 December 2019, the Tribunal received a request to reinstate the review application. In it, the applicant’s agent noted that although the Tribunal’s hearing invitation letter had been sent to an email address nominated by the agent, it was not the one currently used for most correspondence. In addition, the agent noted that the office was closed on the date that the invitation was sent, and that on the next working day, there was no dedicated receptionist monitoring incoming emails due to unavailability. The agent emphasised that the hearing invitation email had been incorrectly marked as ‘actioned’ but in fact had not been forwarded to the relevant agent within the firm. She further emphasised that the applicant himself was unaware of all of this and in no way responsible for not attending the hearing. She therefore requested that the Tribunal exercise its discretion to reinstate the review application and schedule a new hearing date. Documentary evidence of emails received and stored was provided in support of the request.
On 23 December 2019, the Tribunal wrote to the applicant via his agent to advise that the Presiding Member had now reviewed the reinstatement request and was considering it, but noted that it appeared that the applicant was unable to satisfy cl.408.111 as the Tribunal had no evidence that Wat Monirangsi: The Institution of Buddhism Education and Development Inc was still an approved sponsor who passed the sponsorship test. The Tribunal noted that it therefore appeared that the review application could not succeed, regardless of whether the applicant satisfied the other criterion in dispute, cl.408.213), and that if this was correct, it weighed in favour of not reinstating the review application. The applicant was invited to respond to this information by 6 January 2020.
On 6 January 2020, the applicant’s agent provided a response with supporting documents. In summary, she made the following points:
·Wat Monirangsi was an approved Long Stay Activity Sponsor in the Religious Worker stream at the time of lodgment of the present 408 visa application by the applicant. That sponsorship agreement was approved on 3 February 2014 and as valid until 3 February 2017. On 5 June 2017, Wat Monirangsi lodged a Temporary Activity (subclass 408) sponsorship application. This was approved by the Department on 8 June 2017 and was valid until 8 June 2022;
·Wat Monirangsi previously did not have council approval to operate as a place of worship at its Doveton premises. It was thus non-compliant with local planning regulations. However, in a considerable effort to remedy this matter, Wat Monirangsi purchased a second premises in Skye, in a more rural and isolated location on 2.2 hectares of land, appropriate for worship and festivals. The Temple undertook extensive consultations with a planning expert, Mr Jonathon Chapman at Hellier McFarland, who assisted with a permit application. A permit application was made on 31 March 2017 with Frankston City Council, after detailed and lengthy preparation;
·following a prolonged legal process with Defenders of the Green Wedge Inc, the Victorian Civil and Administrative Tribunal (VCAT) decided in favour of Wat Monirangsi on 5 September 2019 and directed the grant of a planning permit to the Temple for the ‘use and evelopment of land for a place of worship, buldings and works to an existing dwelling and removal of native vegetation.’ Frankston City Council granted the permit of 12 September 2019 for the Temple to use and develop the Skye property as a place of worship. The existing Doveton property was also approved by the City of Casey as an accommodation for existing monks on 3 September 2019;
·Wat Monirangsi was now operating in compliance with all laws and regulations, including local planning laws. Whilst there might have been non-compliance with local planning regulations previously, which might constitute ‘adverse information’ for the purposes of r.1.13A(2) and cl.408.111(b)(i), it should be recognised that Wat Monirangsi had gone to considerable effort to correct any non-compliance. The approval of the sponsorship application by the Department on 8 June 2017 constituted a clear indication on the Department’s part that at that time, it was reasonable to disregard the ‘adverse information’ of non-compliance with planning regulatins, given Wat Monirangsi’s extensive efforts to rectify this;
·it was submitted that the Tribunal should therefore similarly disregard the adverse information for the purposes of cl.408.111(b)(ii), as the Department did when approving the second sponsorship application, as it was reasonable in all the circumstances to do so; and
·given that the Tribunal had a broad discretion to reinstate an application under s.362(1C) of the Act, if it considered it appropriate to do so, it was submitted that it was appropriate to do so in this case given that Wat Monirangsi was an approved sponsor for the purposes of the applicant’s subclass 408 visa application, and it was reasonable to disregard the ‘adverse information’ and reinstate the applicant’s review application.
The supporting documents included the VCAT order of 5 September 2019 in relation to the Skye property, City of Casey permit of 3 September 2019 in relation to the Doveton property, planning permit issued by Frankston City Council for the Skye property on 12 September 2019, notes of meeting held on 25 November 2018 by the Management Committee of the Wat Monirangsi, its profit and loss statement and balance sheet for the 2018/19 financial year, bank statements and cheque account statement for the period 13 September 2019 to 13 December 2019, letter dated 31 December 2019 from Wat Monirangsi’s accountant, and Department’s notification of approval of sponsorship dated 8 June 2017.
On 10 January 2020, the Tribunal made a decision to reinstate the applicant’s review application. It notified the applicant, via his agent, and the Department, on 13 January 2020.
On 5 February 2020, the Tribunal wrote again to the applicant, via his agent, to invite him to attend a hearing on 3 March 2020. On the same date, the applicant’s agent made a request for access to documents held by the Tribunal pursuant to s.362A of the Act. The Tribunal provided copies of the requested documents on 12 February 2020.
On 28 February 2020, the Tribunal received a legal submission from the applicant’s agent, together with further supporting documents. In summary, the agent made the following points:
·   the 2 primary bases for the delegate’s refusal of the applicant’s subclass 408 visa application were that the delegate was not satisfied that the applicant met the ‘genuine temporary entrant’ requirement (cl.408.213) and the sponsorship requirement (cl.408.111);
·   the agent had already addressed the applicant’s ability to meet cl.408.111 in her earlier submissions of 6 January 2020 so now focussed on the ‘genuine temporary entrant’ issue;
·   the Tribunal was referred to the agent’s previous legal submissions to the Department dated 19 December 2016, made in connection with the subclass 408 visa application, which set out the applicant’s personal and immigration history in detail;
·   in summary, the applicant currently held a bridging visa A granted to him in association with his current visa application. Previously, he held a Temporary Wrok (Long Stay Activity) subclass 401 visa which expired on 19 December 2016;
·   the applicant was born in Cambodia on 5 January 1986 and commenced working at Kork Roka pagoda in Takeo province in Cambodia in June 2004. He was ordained as a Buddhist monk after completing the Dhamma-Vinaya School of the Third, Second and First Levels on 5 January 2005;
·   the applicant arrived in Australia in December 2012 as the holder of a Religious Worker (subclass 428) visa, sponsored by the Institution of Buddhist Education and Development Inc, operating as Wat Monirangsi;
·   on 15 December 2014, the applicant applied for a Temporary Work (Long Stay Activity) (subclass 401) visa, again sponsored by Wat Monirangsi. This visa was granted on 21 February 2015 and was valid until 19 December 2016. On that date, the applicant lodged the current vis application now under review, seeking a further period of stay as a Religious Worker for 6 months, from 19 December 2016 to 19 May 2017. The visa application was refused on 17 May 2017 on the basis that the applicant did not satisfy cl.408.111 and 408.213 of the Regulations;
·   Wat Monirangsi was a Cambodian Buddhist pagoda in Melbourne, serving the teachings of Buddhism. Wat Monirangsi carried out Buddhist educational programs, provided teachings on Khmer literature, language and culture, including celebrating Buddhist rituals and Khmer traditional festivals. In addition, Wat Monirangsi led regular meditation and prayer sessions and played an important role in Australian multicultural society through the servicing of not only the Khmer and Cambodian-Australian community but also Vietnamese and Chinese Australians and other migrants seeking to practice their Buddhist faith;
·   in relation to cl.408.111, Wat Monirangsi was an approved Temporary Activity sponsor until 8 June 2022. It was acknowledged that it previously did not have council approval to operate as a place of worship at its Doveton property but since that time, Wat Monirangsi had acquired another property in Skye, and after lengthy and involved planning and consulting, succeeded in obtaining council permission to operate Skye as a temple, and to operate Doveton as a provider of accommodation for monks. Wat Monirangsi was now operating in compliance with all applicable laws and regulations and it appeared that this had been recognised by the Department when it approved the most recent sponsorship approval application to 8 June 2022, disregarding the ‘adverse information’ constituted by the breach of planning regulations;
·   the Tribunal was urged to make the same finding in relation to cl.408.111(b)(i) and to thus find that cl.408.111 as a whole was satisfied;
·   in relation to cl.408.213, it was noted that the delegate found that the applicant was not a genuine temporary entrant solely based on the fact that the applicant’s cumulative stay in Australia exceeded 4 years. She noted that ‘… this visa program is not intended for visa holders to remain in Australia for extended periods of time. Given the applicant’s past visa history already exceed a cumulative stay of more than four (4) years as the holder of Temporary Religious Worker visas, I find that the grant of another Temporary visa would be contrary to the intention of the Temporary Activity program.’ However, it was submitted that, contrary to the delegate’s findings, the applicant genuinely intended to stay temporarily in Australia to carry out his duties as a Religious Worker;
·   department policy in force at the time of the visa application provided that ‘Clause 408.213 requires that the applicant genuinely intends to stay in Australia temporarily to carry out the activity for which the visa is granted, having regard to: whether the applicant has complied substantially with the conditions of any last substantive visa held or any subsequent bridging visa, whether the applicant intends to comply with conditions to which the visa would be subject, and any other relevant matter… [in relation to the latter issue]… the delegate may also consider information that may be either beneficial or unfavourable to the applicant such as: the applicant’s circumstances in their home country. This may include… their current employment, family situation, future prospects, and general circumstances of their country, eg civil unrest, economic strife or famine; whether the position has been created to secure the person’s stay in Australia. Delegates should assess whether family members, the applicant’s community etc have created the position to fit the attributes of the particular person; the personal attributes and vocational or employment background of the applicant and their ability to undertake the position. Factors to consider are the applicant’s current occupation, current skill level and whether they have undertaken the same or similar work in Australia or overseas; the applicant’s proficiency in English is consistent with their supported activities (although applicants are not required to undertake English language testing, however if they are to work in Australia that at least a rudimentary knowledge of English should be expected)… Further consideration should be given to the applicant’s intentions if it appears the applicant’s qualifications/competencies or employment background is significantly inconsistent with the supported activities. For example, if an applicant who has no history with a religious institution is supported or sponsored for a religious leadership role;’
·   the applicant had complied substantially with the conditions of his last substantive visa (his subclass 401 visa granted on 21 February 2015). His unblemished history of compliance with his visa conditions evinced an ongoing intention to comply with the conditions that would be imposed on a subclass 408 visa. Indeed, in the refusal decision, the delegate had acknowledged that the applicant had complied with the conditions on his last substantive visa and that there was no indication that he did not intend to comply with any conditions imposed on his subclass 408 visa;
·   the applicant was eminently qualified for the position and had undertaken the same work in Cambodia and Australia, having worked for Buddhist temples for the past 15 years. He had been seving as a Buddhist monk at Wat Monirangsi since December 2012. From 2004 to 2012, he served as a Buddhist monk at Kork Roka Pagoda in Cambodia. He had undertaken formal Dhamma-Vinaya qualifications and had also undertaken ongoing professional development since being in Australia. He had participated in English conversation classes at Springvale Neighbourhood House and also undertaken an English as an Additional Language (EAL) course at Chisholm Institute of TAFE;
·   further, the applicant’s intention was to carry out Religious Worker activities in accordance with the wishes of the Buddhist community in Australia. There was a genuine need for his skills and experience in the Khmer-Buddhist community in Australia. The nominated position was not created to secure his stay in Australia. There was sufficient evidence regarding the applicant’s personal attributes and background to confirm his dedication and highly effective conduct in relation to his role as a Religious Worker to date;
·   the President of Wat Monirangsi, the Venerable Chea had provided a statutory declaration dated 25 February 2020 in which he indicated that the applicant had ‘… been working as a Buddhist monk at our temple since December 2012. He had provided invaluable religious services to the Khmer-Buddhist community in Victoria throughout his time with our temple. He effectively and diligently performs the tasks and duties of a Buddhist monk, including preparing and conducting traditional Buddhist services, leading congregants in prayer and delivering sermons, participating and encouraging involvement in community events, organising and conducting meditation sessions, and hearing confession and reflections of congregants. He is a valued and respected member within the temple. The Australian Buddhist community would greatly benefit from his continued provision of religious services at Wat Monirangsi;’
·   Wat Monirangsi required Buddhist monks to work in a full-time capacity and to undertake various religious duties in keeping with the extensive training and standing of a Buddhist monk. The monks were required to officiate at various regular religious ceremonies, which occurred either at the temple or within the broader community. They travelled within the community, attending longevity ceremonies for newborn babies and elders of the community, family religious functions, marriage and occasional ceremonies dedicated to ancestors, pre and post-morturary ceremonies at homes, funeral parlours, cremations or burials, pre and post-counselling for grief and loss. As was evident, the work performed by Buddhist monks involved a significant element of community service;
·   the Buddhist monks were required to participate in and lead various religious ceremonies during the celebration of the Khmer calendar year, including but not limited to, the Khmer New Year occurring in April this year. It was important that Buddhist monks worked in groups of 4 to undertake blessing ceremonies and, for religious and cultural reasons, they could not simply delegate 1 monk to 1 ceremony. The enclosed report from Dr Thong Thel, dated 16 August 2017, provided information on the Khmer Buddhist temple structure and the tasks and duties of its monks. Although this report was prepared pursuant to instructions from another Buddhist temple in Victoria, the general information it contained was relevant to the applicant’s circumstances;
·   Dr Thel stated that ‘[a] number of monks are needed in order for a Khmer Buddhist Temple to deliver public worship services and its many ancillary services to worshippers and members of the community. The Book of Discipline dictates that a minimum number of 4 Buddhist monks are needed to perform public worship service. It is generally regarded, and perceived by worshippers, that the more monks performing the public worship, the more the blessing that will be received by worshippers… There are 2 means through which religious services are provided by Buddhist monks during the year, that is, services provided at the home of workshippers and services provided in the temple. Services are provided at the temple when worshippers attend or provided at the respective households of worshippers as prior arranged with the temple, for example, in circumstances where worshippers are elderly or injured and therefore cannot make the trip to the temple. During normal periods within a year, there may be around 4 services during the day, however, during busier periods within the year, there would be up to 10 services per day… In addition to the services provided in respect of each Buddhist and semi-Buddhist ceremonies identified above, Buddhist monks also provide religious service on special occasions, including providing blessing at the birth of a baby and to sick persons in hospital or at the person’s home, perform engagement, wedding and funeral ceremonies in accordance with Khmer culture and tradition. A Buddhist monk therefore has the role to partake in every stage of a worshipper’s work… The role of a Buddhist monk is extensive. In addition to coordinating religious services and ceremonies, a Buddhist monk is required to maintain and clean the temple grounds and facilities, and provide teaching, counselling and refuge for worshippers and members of the community. Buddhist monks would be required to go into community households in groups of 4 guided by a senior monk; sometimes 3 to 5 different families require the services on the same day;’
·   as the Tribunal might be aware, Wat Monirangsi, as a religious institution, could utilise a Minister of Religion Labour Agreement (MORLA), if approved, to sponsor overseas workers as Ministers of Religion (ANZSCO code 272211) and, more recently, a Religious Assistant (ANZSCO code 451816). Following intense lobbying and compelling circumstances from stakeholders and community interest groups over the past few years, the occupation of Religious Assistant was able to be sponsored under a MORLA from 25 September 2019. Previously, Buddhist temples such as Wat Monirangsi faced significant difficulties having a MORLA approved in order to sponsor Buddhist monks, as the Department’s view was that there could only be one sponsored Minister of Religion within a religious institution, and it required that person to not only head the Church but to preach to congregants as in the Christian faith, rather than lead quiet meditations and other contemplative activities. The Department thus had no regard for the largely non-hierarchical structure of a Buddhist temple or the need for a number of Buddhist monks to work together to perform religious ceremonies and provide religious services in concert, as well as meditate;
·   with the recent inclusion of the occupation of Religious Assistant for MORLAs, and the approval by Frankston City Council of the planning permit for Wat Monirangsi to use and develop the Skye property as a place of worship, the temple wanted to lodge a MORLA request nominating a number of their Buddhist monks as Religious Assistants, including the applicant. However, the Department would not consider approving a MORLA request while any immigration matter for a nominee was still awaiting an outcome. In respect of the applicant, a MORLA request could thus only be made if he had been granted a subclass 408 visa. He could not have a pending immigration matter with either the Department or Tribunal;
·   the applicant also would not be barred by s.48 of the Act should he wish to apply onshore for an Employer Nomination Scheme subclass 186 visa in the labour agreement stream, if a MORLA was approved. However, even if Wat Monirangsi was able to make a MORLA request in respect of the applicant, there was no guarantee that the Department would approve it, and the processing time could be up to 6 months on present estimates. If the MORLA were approved, the applicant would consider whether he wished to apply for an ENS subclass 186 visa;
·   in respect of the possibility that the applicant might in future be sponsored for an ENS subclass 186 visa and the relevance of this to the ‘genuine temporary entry’ issue, the Tribunal was referred to the case of Sivaguru Kanapathy Saravanan v Minister for Immigration and Multicultural Affairs [2002] FCAFC 81 in which the Federal Court discussed the meaning of the ‘purpose’ of visiting Australia in relation to the validity period of a Tourist (Short Stay) subclass 676 visa. The applicant in that case applied for a subclass 676 visa with the stated intention of lodging a Business (Long Stay) subclass 457 visa application during the validity period of his subclass 676 visa. It was noted that the language of the clause under consideration in that case (cl.676.211(a)), being a ‘purpose related to business’ was not, strictly speaking a ‘genuine temporary entrant’ requirement. However, Finkelstein J’s comments were still relevant: ‘Having identified the respondent’s purpose for remaining in Australia, the next question is whether that purpose is “related” to business. Indirectly it is related because there is some connection between the respondent’s immediate need to obtain a tourist visa and his ultimate intention to operate a business in Australia. But does this indirect relationship bring the respondent within the operation of cl.676.211? I propose to illustrate the approach that should be taken by reference to a more extreme example of an indirect relationship to the business. Let it be assumed, as here, that a person is contemplating the establishment of a business in Australia and requires a long stay business visa for that purpose. Let it also be assumed that before the particular business can be established, the person must undertake a tertiary course at an appropriate institution of which there are several in Australia. Finally, let it be assumed that the person wishes to visit Australia for the purpose of selecting the best institution for him to undertake that course. The person applies for a tourist visa to visit Australia for the sole purposes of selecting the best institution. Is that purpose “related to business.” That there is some connection cannot be denied. If the person obtains a tourist visa he will visit Australia to select the institution that best suits him. He will then undertake the course that will qualify him for the business he hopes to conduct in Australia. In due course he may come to Australia to operate that business. Is that purpose “related to business” for the purposes of cl.676.211. I think not. The relationship is indirect and it is far too remote;’
·   at present, the applicant genuinely intended to remain in Australia temporarily as the holder of a subclass 408 temporary visa to continue to provide religious services as a Religious Worker. He might, if a positive outcome was achieved in respect of a future MORLA request by Wat Monirangsi, consider applying for a further visa. That possibility was, however, far too remote to be relevant to his current intention to remain in Australia temporarily. There were far too many conditions precedent that had to be first met before the possibility might arise that the applicant could remain, most of which were beyond the control of both the applicant and Wat Monirangsi. It was certainly not the present intention of either party that the applicant would remain beyond the period of a further subclass 408 visa, if the applicant were to be granted one;
·   the Tribunal’s attention was drawn also to Minister for Immigration and Border Protection v Khannai [2016] FCA 142, in which the Federal Court held that the Tribunal in that matter had made a jurisdictional error by finding that the applicant did not meet the ‘genuine temporary entrant’ criterion for a student visa (cl.573.223) as she had expressed an intention to settle in Australia in the long-term, if given the opportunity to do so. It was acknowledged that the ratio in this case had not been applied in relation to temporary activity short stay visas and was largely restricted to the student visa context, which operated in a highly prescriptive regime involving the mandatory application of Ministerial Direction no.69. The Temporary Activity (subclass 408) visa program did not involve the same prescribed considerations as the student visa regime and thus Khanna was of limited relevance to the present case;
·   a recent Tribunal (differently constituted) decision in Wu (Migration) [2019] AATA 3779 had regard to Khanna and subsequent cases and concluded that the assessment of ‘genuine temporary entrant’ is one that had to be undertaken by a decision maker at the time of decision by determining whether there was a ‘settled intention’ at that time to apply for a permanent visa. If there was such a settled intention, the Tribunal held that that intention was not consistent with an intention to genuinely stay in Australia temporarily. The Member stated as follows: ‘Equally that an applicant for a Student visa may, at the time of the decision, hope, for example, to undertake post-graduate study if successful in respect of the study for which the particular visa is sought, but nonetheless still leave once any further study is completed, it may be open to conclude that the visa applicant does still have, at that time, an intention “genuinely to stay in Australia temporarily.” The Regulations do provide for other classes of visa which may be sought onshore so as to permit the holder of a Student visa to seek a visa which would permit a longer stay for further study or employment. That means that, after the time of decision, it is possible for an intention to change, depending on the later circumstances. It also means that it is possible for there to be, at the time of decision, an intention to seek some further visa which will nonetheless lead to nothing more than further temporary residence. But if there is a settled intention, at the time of decision, later to seek a visa that will lead to other than temporary residence, that intention is not consistent with an intention to “genuinely stay in Australia temporarily.” What is required is an evaluation by the decision-maker of intention as at the time of decision;’
·   the notion of a ‘settled intention,’ in the sense of a realistic and foreseeable intention, is intellectually consistent with the Saravanan notion of such intention lacking ‘remoteness’ or a high degree of uncertainty when considering the possibility of applying for a further visa as discussed above;
·   in the present case, it could not be said that the applicant had a settled intention to apply for a visa at the conclusion of the validity of any subclass 408 visa granted to him. At present, he genuinely intended to remain in Australia temporarily as the holder of a Temporary Activity subclass 408 visa to continue to provide religious services as a Religious Worker and he might, if a positive outcome was achieved in respect of a future MORLA request by Wat Monirangsi, consider applying for a further visa at that time. That possibility, however, was far too remote to constitute a settled intention on his part at this time;
·   it was acknowledged that the applicant had been resident in Australia for over 7 years, and that this was his second onshore application for a Temporary Activity subclass 401/408 visa, as he previously held a Religious Worker subclass 428 visa between 19 February 2012 and 19 December 2014 and a Temporary Work subclass 401 visa from 21 February 2015 to 19 December 2016;
·   the applicant had thus been in Australia as the holder of a substantive visa for approximately 4.5 years, and held a bridging visa A for the remainder of his time in Australia. The time spent as a bridging visa A holder was beyond his control as it related to the Department’s processing times, and should not be assessed as indicating that his intentions of remaining in Australia were not genuine;
·   on this issue, the Department’s policy provided as follows: ‘… it is not the intention that a visa holder remains in Australia on multiple grants of GG 408 visass for an extended period of time. If the grant of a GG 408 visa would result in an applicant exceeding 4 years stay in Australia as the holder of temporary visas, then the period of stay granted should allow the holder only enough time to finalise their current assignment in Aujstralia and depart, or allow only enough time for them to apply for another visa subclass if they are eligible and state their intention to do so… There is room for policy discretion when considering previous periods of stay in Australia. For example, an applicant who 3 years previously had a working holiday for a year in Australia should not have this prior stay considered agasint a GG 408 visa application;’
·   it was clear from the above policy that there was considerable discretion in relation to consideration of previous periods of stay in Australia when assessing this criterion. Despite having spent more than 4 years in Australia, the applicant only sought a further 6 months’ stay to finalise his religious work and, if the opportunity arose (that is, if and only if a MORLA request by Wat Monirangsi was approved) then he might remain in Australia and continue his valuable service for the temple. It was therefore submitted that the applicant satisfied the ‘genuine temporary entrant’ requirement in cl.408.213;
·   in relation to other legislative requirements, it was acknowledged that the Tribunal might or might not make findings on these. However, in relation to cl.408.211, the requirement that the applicant did not intend to engage in activities that would have an adverse consequence for employment or training opportunities, or conditions of employment, for Australian citizens or permanent residents, it was submitted that the applicant clearly satisfied this. He had worked for Wat Monirangsi as a Buddhist monk for the past 7 years, providing essential spiritual and cultural services to congregants and members of the Cambodian and Buddhist communities. He had fulfilled a role within the temple and the broader Cambodian Buddhist community in Victoria what could not have been, and continues not to be able to be, provided by an Australian citizen or permanent resident;
·   by way of background, it was noted that Wat Monirangsi had historically recruited Buddhist monks from Cambodia, as they had experienced the required monastic lifestyle and extensive training before coming to Australia and they understood what it meant to be a Buddhist monk. As part of their ordination, Buddhist monks had to take certain vows, known as the 10 precepts, including a vow of poverty. Wat Monirangsi had found it difficult in the past to source Buddhist monks in Australia who were prepared to accept this humble lifestyle and join the monastery. Without the ability to sponsor overseas Buddhist monks, Wat Monirangsi would be unable to provide the kind of service to its constituents;
·   in relation to cl.408.212, it was submitted that the applicant had made adequate arrangements for health insurance for the duration of his intended stay in Australia;
·   the applicant did not hold a permanent visa or a specified temporary visa, and thus met cl.408.214. Moreover, he met cl.408.215 (the requirement to have adequate means to support himself) as Wat Monirangsi would meet all his expenses and provide accommodation, food, clothing, utilities, transport, health, education and welfare costs. Venerable Chea instructed that these costs were met for all the temple’s monks by donations from the members;
·   in relation to the specific Religious Worker criteria in cl.408.223, it was reiterated that the applicant sought to remain in Australia to provide services as a religious worker on a full time basis at a religious institution that was operating lawfully; and
·   Wat Monirangsi had invited the applicant to provide ongoing services to their temple, which was not-for-profit in nature. The Tribunal had already been provided with an extract from the ACNC register confirming that the temple was a not-for-profit organisation and registered as a charity in Australia since December 2012, as per its ABN registration showing its tax-exempt status. Its current sponsorship approval was valid until 8 June 2022. The applicant’s role aligned closely with that of a Religious Worker, and the Tribunal had been provided with a full position description and contract supporting this, in line with Department policy. The Tribunal could be satisfied that the applicant’s role was most certainly religious, not-for-profit work which directly benefited the religious objectives of Wat Monirangsi, for which the applicant had appropriate qualifications and experience.

The submission was accompanied by a statutory declaration by Venerable Vong Chea, President of Wat Monirangsi, dated 25 February 2020, an expert opinion by Dr Thong Thel, a Cambodian-Australian academic, dated 16 August 2017 for another Buddhist temple, and a further expert opinion from Dr Scott Pacey, University of Nottingham, dated 20 July 2017.
The applicant appeared before the Tribunal on 3 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Venerable Vong Chea and oral submissions from the applicant’s agent.
In response to the Tribunal’s questions, the applicant confirmed that he came to Australia in December 2012, when he was in his 20s, having been a Buddhist monk since 2004 in Cambodia. He came to Australia because there was a shortage of Buddhist monks to minister to the Australian-Cambodian Buddhist community in Melbourne, and there was a relationship between the temple he was based at in Cambodia, and Wat Monirangsi temple in Melbourne. The applicant noted that his work involved ministering to not just the Cambodian Buddhist community in Australia, but also to Vietnamese, Chinese and Laotian Buddhists in Australia. At the time he came to Australia, he did not know how long he would stay. He understood that he would stay as long as needed. At the end of his first visa (approximately 2 years after he arrived), he and the temple made another visa application for him to remain for a further period, as the need for his work was still there. At present, there was still a shortage of Buddhist monks and the community needed him.
In response to the Tribunal’s query, the applicant said that some of the Buddhist monks associated with the temple are temporary residents and some are permanent residents; however, nearly all of them came from Cambodia originally. There are currently 4 monks at Wat Monirangsi temple in Doveton, and another 5 at the Skye property. The applicant moved between the 2 properties as needed. He stated that he was now well known to the Buddhist community, and there was still a shortage of monks to service the community. If he were not able to continue his work, it would be difficult to replace him, as he was now one of the most experienced monks in the organisation. Unless a monk has been at the temple for at least 5 months, they cannot carry out the full range of duties required of them. The applicant said that the shortage of monks was due to the fact that it was a demanding lifestyle and not many Australian Buddhists were prepared to undertake it.
When asked why he and the Temple sought a 6 month stay in relation to his third visa application (the one currently under review), the applicant said that at that time, it was thought that 6 months would give sufficient time to make other arrangements if he could not stay beyond that. The applicant reiterated that there was still a severe shortage of Buddhist monks and that is why the Temple wanted him to stay on and continue to serve the community, if possible.
The applicant’s agent advised that the MORLA program had only recently been expanded to cover Religious Assistants, the occupation to which the applicant’s role as a Buddhist monk was most closely related, and so prior to late 2019, it was unlikely that the Temple could have had a MORLA approved in relation to the applicant (or any other monk) as the Department’s position was that Buddhist monks were not equivalent to Ministers of Religion (at that time, the only occupation approved for MORLA nomination). The applicant’s agent also submitted that the Department’s current position is that it would not approve a MORLA for a nominee who had a pending onshore application for another visa category – only for the holder of a substantive visa in Australia, or an offshore applicant. She submitted that if the applicant were required to apply offshore, it would be disruptive to him, the Temple and its community, and would result in restricted services to the community.
In relation to the intention to reside in Australia temporarily, the applicant’s agent submitted that although there was no specific case law on how this should be interpreted in the context of the subclass 408 visa category, it appeared that it was relevant to consider an applicant’s ‘fixed purpose’ at the time of decision, as set out in her earlier written submissions. She further noted that consideration of this issue in relation to the subclass 408 visa was not subject to a specific set of directions, as it was in the student visa program. This, together with the non-exhaustive list of factors set out in PAM3, indicated that a flexible approach should be taken. In this case, the Temple had not decided whether or not to lodge a MORLA application in relation to the nominee, and if it did, it was unclear whether it would be successful. Therefore, despite the expressed wish of the Temple and the applicant that he be able to remain in Australia permanently to continue his work, it was not clear whether this would in fact be possible, and thus should not be taken to undermine the applicant’s ability to satisfy cl.408.213.
The Tribunal then took evidence from Venerable Vong Chea, the Abbot of Wat Monirangsi. He confirmed that he had had this role since 2006, and that there had been, and remained, an ongoing shortage of monks to provide the necessary services to the Melbourne Buddhist community. Venerable Chea confirmed that it was impossible to recruit monks locally as they lacked the training provided to monks in Cambodia, and few, if any, Australian Buddhists were prepared to adopt the restrictive lifestyle required of a Buddhist monk. This is why they had applied for a series of visas for the applicant. In response to the Tribunal’s query, Venerable Chea said that if possible, the Temple committee would like the applicant to remain in Australia, and his role, on a permanent basis, as he was an experienced monk and well regarded within the community in Melbourne. He confirmed that it would be a committee decision as to whether to apply for a MORLA in respect of the applicant, and although it had been discussed at a recent meeting, no concrete steps had been taken as yet. Venerable Chea noted that, as per the agent’s advice, the law appeared to change frequently in this area, and he asked the Tribunal to give favourable consideration to the genuine need for the applicant to remain in Australia as a Buddhist monk.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant satisfies cl.408.211 and cl.408.213.
Clause 408.111 – Approved Sponsor
Although Wat Monirangsi was not approved as a Temporary Activities sponsor at the time of the delegate’s decision, it has since been approved, as the documentary evidence provided to the Tribunal establishes that it was so approved on 8 June 2017, and that this approval is valid until 8 June 2022. The Tribunal is satisfied that the sponsorship has not been withdrawn and finds that cl.408.111(a) is met.
In relation to whether any ‘adverse information’ is known about the applicant (and if so, whether it is reasonable in the circumstances to disregard it), theTribunal notes that the definition of ‘adverse information’ is not exhaustively defined, but is confined to information no older than 3 years before the time of decision (as per 1.13A). The examples listed as examples of what might constitute adverse information do not specifically mention breaches of planning regulations. To the extent that the applicant’s failure to obtain planning permission for its Doveton site to operate as a temple prior to March 2017 might constitute ‘adverse’ information for the purposes of cl.408.111(b), the Tribunal considers it reasonable to disregard this in light of its subsequent successful application to the council for permission. Accordingly, the Tribunal finds that cl.408.111(b) is met.
As the applicant is an approved Temporary Activities sponsor, the Tribunal finds that cl.408.111(c) is not relevant in this case.
Given the above, the Tribunal finds that the applicant passes the sponsorship test and thus satisfies cl.408.111.
Genuine intention to stay temporarily – cl.408.213
It is a common criterion for the grant of a subclass 408 visa that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted: cl.408.213. In assessing this, the Tribunal must have regard to the following:
(a)if the applicant has held a substantive visa – whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b)whether the applicant intends to comply with the conditions to which the subclass 408 visa would be subject; and
(c)any other relevant matter.
In the present case, the applicant seeks the visa for the purpose of continuing in his role as a Buddhist monk at Wat Monirangsi. The Tribunal is satisfied that his role can be appropriately characterised as that of a Religious Worker.
In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.408.213(a)). There is no evidence before the Tribunal to indicate that that the applicant has not complied with the conditions of any of the visas granted to him, and the Tribunal finds that he therefore satisfies cl.408.213(a).
The Tribunal must also consider whether the applicant intends to comply with the conditions to which the subclass 408 visa would be subject (cl.408.213(b)). For primary visa applicants, the conditions to which the visa would be subject are 8107 (must maintain participation in activity) and 8303 (no disruptive / violent conduct) (cl.408.611(a)).
Based on the applicant’s conduct to date as a visa holder in Australia, and the evidence from him and the Venerable Chea regarding his role, the Tribunal is satisfied that the applicant intends to comply with the above conditions, and it finds that he meets cl.408.213(b).
The Tribunal has also considered all other relevant matters as required by cl.408.213(c). As noted by the applicant’s agent, the delegate placed weight on the fact that at the time the applicant made the present visa application, he had been in Australia for approximately 4 years, which, according to Departmental policy, indicated that he did not genuinely intend to stay in Australia temporarily. The Tribunal notes that, as at the time of its consideration, the applicant has now been in Australia for approximately 7 years, and is seeking a further temporary visa to remain for a further period. Both he and the Abbot of Wat Monirangsi, Venerable Chea, expressed the view to the Tribunal that there continues to be a shortage of Buddhist monks to attend to Melbourne’s sizeable Buddhist community, and that if possible, it would be beneficial for the Temple and the community for the applicant to remain in Australia to continue his role, particularly now that he had gained experience in the Melbourne Buddhist community and was known and trusted by that community.
On the face of it, the expressions by the applicant and Venerable Chea are difficult to reconcile with the requirement in cl.408.213 that the applicant genuinely intends to remain temporarily in Australia as the applicant has already been here for some years and both he and his sponsoring organisation wish him to remain here to continue his work. However, the Tribunal gives weight to the agent’s submissions that it is appropriate to consider whether the applicant has a fixed intention [Tribunal’s emphasis] to remain permanently in Australia at the time of decision (in this case, the time of the Tribunal’s decision). In the Tribunal’s view, and in the absence of any specific case law on cl.408.213, the Tribunal is persuaded that while the applicant and his Abbot would like the applicant to be able to remain in Australia permanently to continue in his role with Wat Monirangsi, they do not have a fixed intention that he will do so, as Wat Monirangsi as an organisation is yet to endorse formally applying for a MORLA to do so, and in any case there is no guarantee that a MORLA application would be successful if it did. The Tribunal formed the impression, having taken evidence from the applicant, that while he wished to continue to contribute to the Buddhist community in Melbourne as a monk with Wat Monirangsi, he would accept and abide by any decision made by Wat Monirangsi and/or the Department (or Tribunal on review) on this issue, even if that decision were negative. The Tribunal therefore finds that his intention to remain in Australia permanently (as opposed to temporarily) cannot be said to be ‘fixed’ or ‘settled’ in the sense discussed in Saravanan’s and Wu’s cases.
The Tribunal further notes that it is not bound to apply Departmental policy, where that policy is more restrictive than the wording of the underlying legislation itself. In this case, the Tribunal considers that, to the extent that Departmental policy indicates that an applicant who has been in Australia for 4 years could not, or should not be found to, satisfy cl.408.213, it should not be followed slavishly, as it is more restrictive than the wording of cl.408.213 itself.
In relation to the other factors to be taken into account under the Deparmental policy (which are expressed to be non-exhaustive, and to which the Tribunal considers it appropriate to have regard), including as the suitability of the applicant’s attributes to the nominated role, whether the position appeared to have been created solely or primarily to obtain residence for the applicant, and/or any disincentives to return to the applicant’s home country, the Tribunal is satisfied that the position was not created to facilitate residence for the applicant, but arises from a genuine and longstanding need in the Buddhist community in Melbourne coupled with a shortage of Australians who could or would take such a role. The Tribunal is further satisfied that the applicant’s attributes are entirely consistent with the role he has been undertaking in Australia as a monk, as he trained and acted as one in Cambodia prior to coming to Australia and has been a monk in Australia for some years now. While it could be said that the Cambodian economy might be less developed than the Australian economy, and that this could prove an incentive for an applicant to try to remain in Australia indefinitely, this factor appears to have little relevance in the present case, given that the applicant is subject to a vow of poverty and lives a modest life for which he is provided for by the Buddhist community (and that this would be the case in either Cambodia or Australia).
Having considered all of these factors, singly and cumulatively, the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is to be granted. It finds that the requirements of cl.408.213 are met.
Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.
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 (Temporary Activity) visa:
·cl.408.111 of Schedule 2 to the Regulations; and
·cl.408.213 of Schedule 2 to the Regulations.
Alison Mercer
Member

EXTRACT FROM PART 408, SCHEDULE 2 OF MIGRATION REGULATIONS 1994
Subclass 408—Temporary Activity
408.1—Interpretation
408.111
In this Part:
adverse supporter information :    see clause 408.112.
foreign government agency has the meaning given by subregulation 2.57(1).
government agency has the meaning given by subregulation 2.57(1).
net employment benefit :     an activity which a person seeks to enter or remain in Australia to carry out is taken to bring a net employment benefit to the Australian entertainment industry if:
(a) the person seeks to enter or remain in Australia to carry out the activity individually or in association with a group; and
(b) the Minister is satisfied that the carrying out of the activity would lead to greater employment of Australian citizens or Australian permanent residents (or both) than if a person normally resident in Australia undertook the activity.
passes the sponsorship test : a person passes the sponsorship test in relation to an applicant if:
(a) the person:
(i) is an approved sponsor; and
(ii) has agreed, in writing, to be the sponsor of the applicant; and
(iii) has not withdrawn that agreement; and
(iv) has not ceased to be the sponsor of the applicant; and
(b)  either:
(i) there is no adverse information known to Immigration about the person, or a person associated with the person; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the person, or a person associated with the person; and
(c) if the person is not a temporary activities sponsor—the application was made on or before 18 May 2017.
Note:    The sponsor may be, but is not required to be, the same as the sponsor (or applicant for approval as a sponsor) specified in the visa application.
passes the support test : a person or organisation passes the support test in relation to an applicant if:
(a) if requested by the Minister—the applicant produces a letter of support, from the person or organisation, which:
(i) identifies the event, activity or work for which the applicant seeks to enter or remain in Australia; and
(ii) sets out the duties of the applicant in relation to the event, activity or work; and
(iii) sets out the date or dates, and the location or locations, of the event, activity or work; and
(b) either:
(i) there is no adverse supporter information known to Immigration about the person or organisation, or a person associated with the person or organisation; or
(ii) it is reasonable to disregard any adverse supporter information known to Immigration about the person or organisation, or a person associated with the person or organisation.
sporting organisation has the meaning given by subregulation 2.57(1).
408.112
(1)  In this Part, adverse supporter information is any adverse information relevant to the suitability of a person or organisation to support an application for a Subclass 408 visa (otherwise than as an approved sponsor of the applicant), and includes information that the person or organisation, or a person associated with the person or organisation:
(a) has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subclause (2); or
(b) has, to the satisfaction of a competent authority, acted in contravention of such a law; or
(c) has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law; or
(d) is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or
(e) has become insolvent within the meaning of subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.
(2) The matters are the following:
(a) discrimination;
(b) immigration;
(c) industrial relations;
(d) occupational health and safety;
(e) people smuggling and related offences;
(f) slavery, sexual servitude and deceptive recruiting;
(g) taxation;
(h)  terrorism;
(i) trafficking in persons and debt bondage.
(3)  The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(a) to (e) must have occurred within the previous 3 years.
(4) In this clause:
competent authority has the meaning given by subregulation 2.57(1).
408.2—Primary criteria
Note 1:    The primary criteria must be satisfied by at least one member of a family unit. Any other member of the family unit who is an applicant for a visa of this subclass need satisfy only the secondary criteria.
Note 2:    All criteria must be satisfied at the time a decision is made on the application.
408.21—Common criteria
Note:    These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 408 visa.
408.211
The applicant does not intend to engage in activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or Australian permanent residents.
408.212
The applicant has adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.
408.213
The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a) if the applicant has held a substantive visa—whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b) whether the applicant intends to comply with the conditions to which the Subclass 408 visa would be subject; and
(c) any other relevant matter.
408.214
The applicant does not hold:
(a) a permanent visa; or
(b) a temporary visa specified by the Minister in a legislative instrument made for the purposes of this paragraph.
408.215
The applicant has:
(a) adequate means to support himself or herself; or
(b) access to adequate means to support himself or herself;
during the period of the applicant’s intended stay  in Australia.
408.216
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4013, 4014, 4020 and 4021.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3) If the applicant has not turned 18, the applicant satisfies public interest criteria 4012, 4017 and 4018.
408.217
The applicant satisfies special return criteria 5001, 5002 and 5010.
408.218
Either:
(a) the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or
(b) both of the following apply:
(i) the applicant has engaged in such conduct in that period;
(ii)  the Minister considers that it is reasonable to disregard the conduct.
408.219
(1)  Subject to subclause (2), the applicant:
(a) will not be performing as an entertainer in Australia:
(i) under a performing contract; or
(ii) for non‑profit purposes; and
(b) will not be supporting an entertainer or a group of entertainers in Australia; and
(c) will not be directing, producing or taking another part in:
(i) a film, television or radio production that is to be shown or broadcast in Australia; or
(ii)  a theatre production or concert that is to be performed in Australia; or
(iii) a recording that is to take place in Australia.
(2)  This clause does not apply to an applicant who satisfies the requirements in clause 408.229 (Australian Government endorsed events) or 408.229A (entertainment).
408.219A
A clause in Subdivision 408.22 applies to the applicant.
408.22—Alternative criteria
Note:    A clause in this Subdivision must apply to the applicant in order for the applicant to satisfy the primary criterion in clause 408.219A.
408.221
Invited participant in an event
This clause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to participate in one or more events; and
(b) the applicant stated on the application form that the proposed length of stay in Australia did not exceed 3 months; and
(c) the applicant has been invited to participate in the event or events by a person or organisation; and
(d)  the person or organisation:
(i) is directly responsible for the event or events; or
(ii) has a formal role in preparing for, or conducting, the event or events; and
(e) the duties or tasks to be undertaken by the applicant are appropriate and reasonable, having regard to the requirements of the event or events; and
(f) either:
(i) the person or organisation is a temporary activities sponsor and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made—the person or organisation passes the support test in relation to the applicant.
408.222
(1) This clause applies to the applicant if subclause (2) or (3) applies to the applicant.
Sports trainee
(2) This subclause applies to the applicant if:
(a)  the applicant seeks to enter or remain in Australia to participate in sport by being trained by a sporting organisation (the relevant sporting organisation) that is lawfully operating in Australia; and
(b) the applicant is a sportsperson or adjudicator who:
(i) is currently competing or adjudicating at the Australian national level, or equivalent; or
(ii) is endorsed by the relevant peak sporting body in Australia or overseas as having the demonstrated potential to compete or adjudicate at the Australian national level, or equivalent; and
(c) the relevant sporting organisation has an international reputation for training elite sportspeople or adjudicators; and
(d) the relevant sporting organisation is not a sporting club that, as its primary activity, competes in sporting competitions below the Australian national level for the sport; and
(e) either:
(i) the relevant sporting organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
(ii)  if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the relevant sporting organisation passes the support test in relation to the applicant.
Elite player, coach, instructor or adjudicator
(3)  This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to be a player, a coach, an instructor or an adjudicator in relation to an Australian sporting team or sporting organisation; and
(b) the applicant has been invited to participate in the activity referred to in paragraph (a) by a sporting organisation (the relevant sporting organisation) that is lawfully operating in Australia; and
(c) the applicant has entered into a formal arrangement that provides for the applicant to participate in the activity referred to in paragraph (a) for a period specified in the arrangement; and
(d) the Minister has been provided with a letter of endorsement from the national sporting body responsible for administering the sport in Australia, certifying that the applicant has the ability to play, coach, instruct or adjudicate at the Australian national level; and
(e) either:
(i) the relevant sporting organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the relevant sporting organisation passes the support test in relation to the applicant.
408.223
Religious worker
This clause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to provide services as a religious worker; and
(b) the applicant has been invited to provide the services by a religious institution that is lawfully operating in Australia; and
(c) the applicant will be engaged on a full‑time basis to work or participate in an activity in Australia that:
(i) is predominately non‑profit in nature; and
(ii) directly serves the religious objectives of the religious institution; and
(d) the applicant has appropriate qualifications and experience to undertake the work or activity; and
(e) either:
(i) the religious institution is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
(ii)  if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the religious institution passes the support test in relation to the applicant.
408.224
Domestic worker
This clause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to provide services as a domestic worker; and
(b) the applicant has been invited to provide the services by a person or organisation that is:
(i) a foreign government agency that employs a person (the first visa holder) who holds a Subclass 403 (Temporary Work (International Relations)) visa in the Privileges and Immunities stream; or
(ii) a foreign organisation that is lawfully operating in Australia and that employs a person (the first visa holder) who holds a Subclass 457 (Temporary Work (Skilled)) visa; and
(c) the first visa holder is the national managing director, deputy national managing director or State or Territory manager of an Australian office of the foreign government agency or foreign organisation; and
(d) the applicant will be employed to undertake full‑time domestic duties in the private household of the first visa holder; and
(e)  the grant of the visa would not cause the number of domestic workers holding visas for employment in the household of the first visa holder to exceed 3 (including the applicant); and
(f) the applicant has turned 18; and
(g) the applicant has experience working as a domestic worker; and
(h) the person or organisation provides evidence that:
(i) the person or organisation has been unable to find a suitable person in Australia to undertake the duties; or
(ii) there are compelling reasons for employing the applicant; and
(i) the applicant is to be employed in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards; and
(j) either:
(i) the person or organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the person or organisation passes the support test in relation to the applicant.
408.225
Superyacht crew
This clause applies to the applicant if:
(a) the applicant is a member of the crew of a superyacht; and
(b) the applicant has turned 18; and
(c) either:
(i) the captain, owner or operator of the superyacht is a temporary activities sponsor, or a superyacht crew sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the captain, owner or operator of the superyacht passes the support test in relation to the applicant.
408.226
(1) This clause applies to the applicant if either subclause (2) or (3) applies to the applicant.
Research
(2) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to observe or participate in an Australian research project:
(i) at an Australian tertiary or research institution (the relevant institution) that is lawfully operating in Australia; and
(ii) in collaboration with academics employed by the relevant institution; and
(b) the applicant:
(i) is employed, or was formerly employed, as an academic at a tertiary or research institution; and
(ii) has a significant record of achievement in his or her field; and
(c) either:
(i) the relevant institution is a temporary activities sponsor, or a training and research sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the relevant institution passes the support test in relation to the applicant.
Research (student)
(3) This subclause applies to the applicant if:
(a) the applicant:
(i) is a student of a foreign educational institution; or
(ii) has graduated from a foreign educational institution during the 12 months preceding the making of the application; and
(b) the applicant seeks to enter or remain in Australia to undertake research at an Australian tertiary or research institution (the relevant institution) that is closely related to the course in which the student is or was enrolled at the foreign educational institution; and
(c) the relevant institution is lawfully operating in Australia; and
(d) either:
(i) the relevant institution is a temporary activities sponsor, or a training and research sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the relevant institution passes the support test in relation to the applicant.
408.227
Staff exchange
This clause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to work for an organisation (the first organisation) that is:
(i) an Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; or
(iii) a foreign government agency; and
(b) there is a written agreement between the first organisation and a foreign organisation (the reciprocating organisation) that provides for:
(i) the applicant to work for the first organisation in Australia for a period specified in the agreement; and
(ii) a named person, who is an Australian citizen or an Australian permanent resident, to have the opportunity to obtain experience with the reciprocating organisation for a specified period; and
(c) the exchange set out in paragraph (b) will be of benefit to both the applicant and the Australian citizen or Australian permanent resident; and
(d) the work that the applicant will perform for the first organisation will be in a skilled position; and
(e) either:
(i) the first organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the first organisation passes the support test in relation to the applicant.
408.228
(1) This clause applies to the applicant if any of subclauses (2) to (5) apply to the applicant.
Youth exchange program
(2) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to participate in a youth exchange program that has been approved in writing by the Secretary for the purposes of this paragraph; and
(b) the program is being conducted by a person or organisation that is:
(i) an Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; and
(c) the person or organisation is a party to a special program agreement with the Secretary in relation to the program; and
(d) either:
(i) the person or organisation is a temporary activities sponsor, or a special program sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the person or organisation passes the support test in relation to the applicant.
School to School Interchange Program
(3) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to participate in the School to School Interchange Program; and
(b) the School to School Interchange Program is being conducted, or is proposed to be conducted, by a person or organisation that is:
(i) a community‑based, non‑profit Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; and
(c) either:
(i) the person or organisation is a temporary activities sponsor, or a special program sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the person or organisation passes the support test in relation to the applicant.
School Language Assistants Program
(4) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to participate in the School Language Assistants Program; and
(b) the School Language Assistants Program is being conducted, or is proposed to be conducted, by:
(i)  a community‑based, non‑profit Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; and
(c) either:
(i) the person or organisation is a temporary activities sponsor, or a special program sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the person or organisation passes the support test in relation to the applicant.
Other programs
(5) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to participate in a program which:
(i) has the objective of cultural enrichment or community benefit; and
(ii) has been approved in writing by the Secretary for the purposes of this paragraph; and
(b) the program is being conducted, or is proposed to be conducted, by a person or organisation that is:
(i) a community‑based, non‑profit Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; and
(c) the person or organisation is a party to a special program agreement with the Secretary in relation to the program; and
(d) either:
(i) the person or organisation is a temporary activities sponsor, or a special program sponsor, and passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—the person or organisation passes the support test in relation to the applicant.
408.229
Australian Government endorsed event
This clause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to undertake work directly associated with an event; and
(b) the event is specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(c) the applicant is in a class of persons specified in the instrument in relation to the event.
Note:    There is no requirement for a person or organisation to pass the sponsorship test or pass the support test in relation to the applicant.
408.229A
(1) This clause applies to the applicant if any of subclauses (2) to (8) apply to the applicant.
Performing in film or television production subsidised by government
(2) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to perform:
(i) as an entertainer under a performing contract for one or more specific engagements (other than non‑profit engagements) in Australia; and
(ii) in a film or television production that is subsidised, in whole or in part, by a government in Australia; and
(iii) in a leading role, major supporting role or cameo role, or to satisfy ethnic or other special requirements; and
(b) the Arts Minister, or a person authorised by the Arts Minister, has provided a certificate confirming that the relevant Australian content criteria have been met; and
(c) either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant; and
(d) the eligible sponsor or eligible supporter holds any necessary licences in respect of the production; and
(e) the eligible sponsor or eligible supporter has consulted with relevant Australian unions in relation to the employment or engagement of the applicant in Australia.
Performing in film or television production not subsidised by government
(3) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to perform:
(i) as an entertainer under a performing contract for one or more specific engagements (other than non‑profit engagements) in Australia; and
(ii) in a film or television production that is not subsidised in any way by a government in Australia; and
(iii) in a leading role, major supporting role or cameo role, or to satisfy ethnic or other special requirements; and
(b) the Arts Minister, or a person authorised by the Arts Minister, has provided a certificate confirming that:
(i) citizens and residents of Australia have been afforded a reasonable opportunity to participate in all levels of the production; and
(ii) the foreign investment, or the private investment guaranteed against the foreign returns by a distributor, in the production is greater than the amount to be expended on entertainers sponsored or supported for entry; and
(c)  either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant; and
(d)  the eligible sponsor or eligible supporter holds any necessary licences in respect of the production; and
(e)  the eligible sponsor or eligible supporter has consulted with relevant Australian unions in relation to the employment or engagement of the applicant in Australia.
Performing in productions not related to film or television
(4) This subclause applies to the applicant if:
(a) the applicant seeks to enter or remain in Australia to perform as an entertainer under a performing contract that:
(i) is not related to a film or television production; and
(ii) is for one or more specific engagements (other than non‑profit engagements) in Australia; and
(b) the activity of the applicant referred to in paragraph (a) will bring a net employment benefit to the Australian entertainment industry; and
(c) either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant; and
(d)  the eligible sponsor or eligible supporter holds any necessary licences in respect of the activity of the applicant referred to in paragraph (a); and
(e) the eligible sponsor or eligible supporter has consulted with relevant Australian unions in relation to the employment or engagement of the applicant in Australia; and
(f)  the eligible sponsor or eligible supporter has provided an itinerary specifying the dates and venues for all performances.
Production roles other than as a performer
(5) This subclause applies to the applicant if:
(a)  the applicant will be directing, producing or taking another part (otherwise than as a performer) in:
(i) a film, television or radio production that is to be shown or broadcast in Australia; or
(ii) a theatre production or concert that is to be performed in Australia or
(iii)  a recording that is to take place in Australia; and
(b) the activity of the applicant referred to in paragraph (a) will bring a net employment benefit to the Australian entertainment industry; and
(c)  either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant; and
(d) the eligible sponsor or eligible supporter holds any necessary licences in respect of the activity of the applicant referred to in paragraph (a); and
(e) the eligible sponsor or eligible supporter has consulted with relevant Australian unions in relation to the employment or engagement of the applicant in Australia; and
(f)  the eligible sponsor or eligible supporter has provided an itinerary specifying the dates and venues for the production, concert or recording.
Support staff for profit
(6)  This subclause applies to the applicant if:
(a) the applicant will be supporting an entertainer or a body of entertainers in relation to a performing contract for one or more specific engagements (other than non‑profit engagements) in Australia by assisting a performance or by providing personal services; and
(b) the activity of the applicant referred to in paragraph (a) will bring a net employment benefit to the Australian entertainment industry; and
(c)  either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii)  if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant; and
(d) the eligible sponsor or eligible supporter holds any necessary licences in respect of the activity of the applicant referred to in paragraph (a); and
(e) the eligible sponsor or eligible supporter has consulted with relevant Australian unions in relation to the employment or engagement of the applicant in Australia; and
(f) the eligible sponsor or eligible supporter has provided an itinerary specifying the dates and venues for all performances.
Non‑profit engagements
(7)  This subclause applies to the applicant if:
(a)  the applicant will be:
(i) performing as an entertainer in one or more specific engagements that are for non‑profit purposes; or
(ii) supporting an entertainer or a body of entertainers in relation to one or more specific engagements that are for non‑profit purposes, by assisting a performance or by providing personal services; and
(b) either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant; and
(c) the eligible sponsor or eligible supporter has provided an itinerary specifying the dates and venues for all performances.
Documentary program or commercial for overseas market
(8) This subclause applies to the applicant if:
(a) the applicant will participate in the making of a documentary program or commercial that is for an overseas market; and
(b) either:
(i) an eligible sponsor passes the sponsorship test in relation to the applicant; or
(ii) if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months—an eligible supporter passes the support test in relation to the applicant.
Eligible sponsor
(9) For the purposes of this clause, a person is an eligible sponsor if:
(a) the person is a temporary activities sponsor or an entertainment sponsor; and
(b) the person is:
(i) an Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; or
(iii) a foreign government agency.
Eligible supporter
(10) For the purposes of this clause, a person or organisation is an eligible supporter if the person or organisation is:
(a) an Australian organisation that is lawfully operating in Australia; or
(b) a government agency; or
(c) a foreign government agency; or
(d) an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.