Srun (Migration)

[2017] AATA 440

Srun (Migration) [2017] AATA 440 (20 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Theavin Srun

CASE NUMBER:  1513444

DIBP REFERENCE(S):  BCC2015/2379524 CLF2015/64581

MEMBER:Karen Synon

DATE:20 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 20 March 2017 at 2:36pm

CATCHWORDS

Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 – Religious Worker stream – Genuine temporary entrant – Legislative change – No new nomination allowed – Nomination ceased by operation of law

LEGISLATION

Migration Act 1958, ss 65, 140GB

Migration Regulations 1994, Schedule 2, cl 401.212, cl 401.214, r 1.13, r 2.75A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 September 2015 to refuse to grant the visa applicant a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 August 2015.  At the time of application, Class GB contained one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).

3. The criteria for a Subclass 401 visa are set out in Part 401 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of the four alternative visa streams: the Exchange stream, the Sport stream, the Religious Worker stream, or the Domestic Worker (Executive) stream. The Domestic Worker (Executive) stream is only available for visa applications made on or after 23 March 2013.

4. In the present case, the applicant is seeking the visa in the Religious Worker stream. This stream provides for the temporary entry of persons who will be full-time religious workers in Australia. The delegate refused to grant the visa because the applicant did not meet cl.401.214 of Schedule 2 to the Regulations because she was not satisfied that the applicant genuinely intends a temporary stay in Australia.

5. On 1 October 2015 the applicant applied for review of the primary decision and provided a copy of the department’s decision to the Tribunal.

6. Prior to the hearing a submission was received that addressed the issue of whether the applicant meets cl.401.214, outlined the applicant’s training and valuable work in the temple and to the Khmer community and canvassed other visa possibilities. In claiming that the applicant meets the ‘genuine temporary entrant requirement’, department policy was quoted and it was asserted that the applicant “only seeks enough time on this temporary visa in order to put himself in a position to lodge a further ENS (subclass 186) visa application”. It was stated that Wat Monirangsi lodged an Employer Nomination (subclass 186) visa application nominating the applicant but this, and the associated visa application, were refused on 7 March 2014 and subsequently affirmed by the Tribunal on review. A labour agreement application made to the department was refused on 10 October 2016. The temple intends to re-lodge this application “once the temple has made satisfactory arrangements with council to put the appropriate permit arrangements in place”. It is anticipated that permit applications will be lodged shortly and advisers are confident of a successful outcome. Upon approval of a permit application by the relevant council, Wat Monirangsi will re-lodge the request for a labour agreement with the department. The submission contended that the applicant has always compiled with his visa conditions and will depart Australia if his visa is refused. Relevantly provided with this submission was document titled ‘Statement’ signed and dated by the applicant which reiterated many of the points made in the covering submission.

7. The applicant appeared before the Tribunal on 20 March 2017 to give evidence and present arguments.  The Tribunal also received oral evidence from Venerable Chea Vong, a representative of the sponsor.  The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

8. The applicant was represented in relation to the review by his registered migration agent.  She was present throughout the hearing.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. While the issue in the department decision is cl.401.214, a preliminary issue that arises on review is whether the applicant is the subject of a current nomination.

    Nomination requirements

11. Clause 401.212 requires that an applicant is identified in a nomination of an occupation or activity approved under s.140GB of the Act, and that the approval of the nomination has not ceased (see r.2.75A). That nomination must be have been made by a person who was, at the time of approval, a long stay activity sponsor, exchange sponsor, sport sponsor or religious worker sponsor.

12. Additionally, this criterion requires either that there is no adverse information known to Immigration about the person who made the approved nomination or a person associated with the nominator, or that it is reasonable to disregard any such information. ‘Adverse information’ and ‘associated with’ are defined in r.1.13A and r.1.13B of the Regulations.

13. On 6 January 2017, the Tribunal wrote to the applicant relevantly advising:

    The Tribunal notes that on 19 November 2016 there were significant regulatory changes made in relation to subclass 401 visas and sponsorship requirements.  After 19 November 2016 no new visa applications can be made for a subclass 401 visa although persons can now apply for a subclass 408 Temporary Activity visa.  Further information regarding the changes to the regulations can be obtained from the department’s website…

    The Tribunal can undertake the review and make a decision in relation to your subclass 401 visa application…and wishes to clarify if you still wish to proceed with your review application given the recent changes to the regulations. 

14. In response on 20 January 2017 the Tribunal was advised that the applicant wishes to proceed with the review.

15. During the hearing the Tribunal asked the applicant when his last nomination was approved.  He did not know but his representative said it was September 2015.   The Tribunal noted that therefore this nomination had ceased by operation of law in September 2016.

16. The Tribunal explained that the 401 visa class closed on 19 November 2016 as documented on the department’s website.[1] Therefore the applicant is not able to satisfy an essential requirement of the visa, cl.401.212, which requires him to be identified in a nomination of an occupation or activity approved under s.140GB of the Act, and that the approval of the nomination has not ceased.

    [1] < 6 March 2017

17. The Tribunal asked the applicant if he understood that because he did not have an approved 401 nomination in respect of him that had not ceased the Tribunal could not make a decision in his favour.  He said yes.

18. Venerable Chea Vong asked the Tribunal to do whatever is in its power to help the applicant stay.  The Tribunal explained that it has no discretion to make a decision outside the law.  Venerable Chea Vong said he made this request because: the applicant has already been here for 6 years and has contributed a lot to the temple; they also have to teach Cambodian children to learn Khmer; he also teaches the applicant to meditate; sometimes when it is busy the applicant helps with business in the temple; they have acquired new land in Skye and he needs him to stay to help; the temple is now getting busy and that is why they need him as a monk to help them; and the applicant helps with all the paperwork in the temple and does all the jobs.  Venerable Chea Vong said he hopes the Member will understand the issues he has raised.

19. The applicant’s representative submitted that it was open to the Tribunal to make findings about the genuine temporary stay issue and leave the issue of the nomination to be heard on remittal. She said there is nothing in the Regulations that requires the Tribunal to make a decision on the nomination issue and in the interests of consistent decision making it should make a finding on the genuine temporary stay issue.  She also said the Tribunal should take more evidence from Venerable Chea Vong about his need for the applicant over the next few months in the event they make a request for Ministerial Intervention.

20. The Tribunal has considered the representative’s oral submission but determined it would be futile and an exercise in delaying the ultimate outcome of a visa in a class that is now closed to make finding only on cl.402.214 and let the nomination issue be determined on a (further) review application in the Tribunal. There is no requirement or utility for the Tribunal to go on and make findings in relation to cl.401.214 once it has been established that cl.401.212 is not met and cannot be met in the future due to the closure of the visa class.

21. The Tribunal notes it took evidence from Venerable Chea Vong at the applicant’s request and that it invited him to give whatever evidence he chose.  It did not direct his evidence and nor did the Tribunal ask him to conclude his witness evidence at any point. The Tribunal is therefore satisfied that it provided Venerable Chea Vong with an opportunity to give whatever evidence he chose to give.  As noted at the hearing should the applicant decide to make a request for Ministerial Intervention he is free to put whatever evidence before the Minister he considers appropriate.  The Tribunal was not asked to consider referring this matter to the Minister.

22. Finally, the Tribunal notes that while the submission received prior to the hearing canvassed future visa options, the Tribunal was not asked to delay its decision making on this review.  In any case the lodgement of a further labour agreement at some point in the future cannot affect the outcome of this review.

23. After considering the oral and written evidence before it the Tribunal finds that the applicant is not identified in a nomination of an occupation or activity approved under s.140GB of the Act that has not ceased.

24. Therefore, cl.401.212 is not satisfied.

25. As noted above because the applicant does not meet the requirements of cl.401.212 it is not necessary for the Tribunal to consider if the applicant satisfies cl.401.214 or any other criteria.

26. The applicant has only sought to satisfy the criteria for a Subclass 401 visa in the Religious Worker stream.  No claims have been made in respect of the other visa streams.  As requirements that must be met by a person seeking the visa in the Religious Worker stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Karen Synon
    Member