Yang (Migration)

[2020] AATA 4995

Yang (Migration) [2020] AATA 4995 (4 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Juhui Yang

CASE NUMBER:  1814870

HOME AFFAIRS REFERENCE(S):          BCC2018/990782

MEMBER:Denis Dragovic

DATE:4 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Activity (Class GG) visa.

Statement made on 04 November 2020 at 8:38pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Religious worker – no formal religious qualifications – no demonstrated history in a trained religious leadership role – invitation by a religious institution – nominated sponsor not registered as being income tax exempt – not registered with the ACNC – decision under review affirmed

LEGISLATION
Income Tax Assessment Act 1997 (Cth), s 50-50
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 408.219A, 408.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 May 2018 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 1 March 2018. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one of the alternative clauses set out in Subdivision 408.22.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.408.223 of Schedule 2 to the Regulations because the applicant had no formal religious qualifications and no demonstrated history in a trained religious leadership role within a religious institution.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal on 4 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets cl.408.223 of the Regulations. In summary this requires that the applicant is seeking to remain in Australia to provide services as a religious worker, that she has been invited by a religious institution operating lawfully in Australia, that the activities she will undertake are predominantly non-profit in nature and directly serve the religious objectives of the sponsoring institution, that the applicant has the appropriate qualifications and experience and the religious institution passes the sponsorship test.

   ‘Religious worker’ requirements

8. The various clauses set out in Subdivision 408.22 of Schedule 2 to the Regulations represent alternative pathways to the grant of the visa. One of these clauses must apply to the applicant for the applicant to meet cl.408.219A, which is an essential requirement for the visa. In this case, the applicant seeks to satisfy the ‘Religious worker’ requirements in cl.408.223. The applicant has not claimed to meet any of the alternative requirements in the other clauses.

9. The religious worker requirement has several subclauses. For cl.408.223 to be met each of the subclauses must be met. In this instance I have turned my mind first to cl.408.223(b).

   Invitation–cl.408.223(b)

10. Paragraph 408.223(b) requires that the applicant has been invited to provide services as a religious worker by a religious institution that is lawfully operating in Australia. ‘Religious institution’ is defined in r.1.03 to mean a body:

    (a)the activities of which reflect that it is a body instituted for the promotion of a religious object; and

    (b)the beliefs and practices of the members of which constitute a religion due to those members:

    (i)believing in a supernatural being, thing or principle and

    (ii)accepting the canons of conduct that give effect to that belief, but that do not offend against the ordinary laws; and

    (c)that meets the requirements of section 50–50 of the Income Tax Assessment Act 1997; and

    (d)the income of which is exempt from income tax under section 50–1 of that Act.

11. The applicant’s nominated sponsor in her application was Nyingmapa Tenglong (Australia) Buddhist Dzogchen Meditation Centre Pty Ltd whose ABN is 607158305. A section 359A letter was sent to the applicant dated 14 October 2020 with the following details:

    The following is information I would like you to comment upon:

    Information from the Australian Tax Office shows that your sponsor, Nyngmapa Tenglong (Australia) Buddhist Dzogchen Meditation Centre Pty Ltd, is not registered as being income tax exempt.

    This information is relevant to the review because paragraph 408.223(b) requires that the applicant has been invited to provide services as a religious worker by a religious institution, which is defined in part as being an institution that is registered as being income tax exempt.

    Subject to your comments, this may lead the Tribunal to find that you have not been invited by a religious institution as defined by the Migration Act and as such that you do not meet s.408.223.

    If so, this would be the reason, or part of the reason, for the Tribunal to affirm your matter.

    You are invited to give comments on or respond to the above information in writing.

12. The applicant did not respond to this letter. Despite the applicant not responding within the period gratned, I proceeded with the hearing. At the hearing the same information and issue was presented to the applicant. The applicant said that she believed the sponsor to be income tax exempt. I explained to the applicant that according to the Australian Taxation Office website it was not. As a secondary check I also ran the ABN through the Australian Charities and Non-for-profit Commission (ACNC) website in case there may have been a mix-up and found that it was not registered with the ACNC.

13. When this was explained the applicant did not have anything further to add.

14. As the applicant is not being sponsored by an entity that is income tax exempt the applicant can’t meet 408.223(b) as the definition of a religious instution (r.1.03) is not met.

15. For these reasons, the Tribunal is not satisfied that the requirements of cl.408.223(b) are met.

16. In light of the above findings, the Tribunal is not satisfied that cl.408.223 applies to the applicant. Accordingly, cl.408.219A is not met.

17. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.

    Denis Dragovic
    Senior Member