Choi (Migration)

[2017] AATA 108

Choi (Migration) [2017] AATA 108 (17 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chang Hak Choi
Mrs So Young Suk
Mr Jaeyoung Choi

CASE NUMBER:  1507651

DIBP REFERENCE(S):  BCC2015/552554 CLF2015/37546

MEMBER:Denise Connolly

DATE:17 January 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Temporary Work (Long Stay Activity) (Class GB) visas.

Statement made on 17 January 2017 at 5:39pm

CATCHWORDS

Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 (Temporary Work (Long Stay Activity)) – Religious Worker stream – Not a genuine temporary entrant – Cleaning business – Extended stay in Australia

LEGISLATION

Migration Act 1958, s 65, s.359A

Migration Regulations 1994, Schedule 2, cl.401.414, cl.401.214

CASES

Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971

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 21 May 2015 to refuse to grant the visa applicants Temporary Work (Long Stay Activity) (Class GB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 February 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.

4. In the present case, the first named applicant (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 visas on the basis that the applicant did not meet cl.401.414 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant genuinely intends a temporary stay in Australia.

5. The applicants appeared before the Tribunal on 27 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Tribunal

8. The applicant, a citizen of Korea, is aged 53 and claims to be a Minister of Religion. When making the visa application the applicant stated that he had resided in Burwood, NSW, Australia from September 2009 to the date of application, with his wife and son, born 31 May 1996. He wished to be granted the visa to undertake the role of Pastor for the Sydney Full Gospel Church. He stated that he had been employed in that role since December 2010.

9. The applicant subsequently provided evidence that his son, the third named applicant, commenced his tertiary studies at the University of Technology, Sydney in February 2015.

10. The applicant provided to the Tribunal a copy of the delegate’s decision record. It sets out the applicants’ movement records. Relevant to this application the applicant arrived in Australia in February 2009 as the holder of an Electronic Travel Authority which expired in February 2010 (3 month stay per entry). While in Australia he applied for an onshore Tourist visa which extended his stay up to May 2010. In May 2010 he then applied for an onshore Student visa which extended his stay until August 2012. In August 2012 he then applied for another Student visa which extended his stay until August 2014. His wife then applied for a Student visa with the applicant as a dependant which extended his stay until December 2015. Departmental records show that, at the time of the delegate’s decision, he had spent a total of 1984 (over 5 years) days in Australia with only 201 days offshore since February 2009. The delegate also formed the view that the applicant had also spent considerable time in Australia in the period 1991 to 2000.

11. Having regard to the PAM3 policy on deciding whether a Subclass 401 visa applicant genuinely intends a temporary stay in Australia, the delegate concluded that the grant of the visa would be contrary to the intention of the program, which is not intended for visa holders to remain in Australia for an extended period. She refused the visas because she was not satisfied the applicant genuinely intends to stay in Australia temporarily to carry out the occupation or activity for which the visa is granted.

12. Prior to the hearing the applicant provided a written statement in which he states he first came to Australia in 1991 and after two years he decided to establish a travel agency providing services to South Koreans interested in Australia. In January 2009, wanting a better educational environment for his son, he sent his son and wife to Australia. He arrived here shortly after. While in Australia he learned about Christianity. He then enrolled in a college to study religion. He volunteered and taught at the Sydney Full Gospel Church. He envisioned that he could become a full-time pastor at the Church. His son is now a university student and he no longer feels a duty to support him as he is an adult. He has visited Australia on a number of occasions and has always complied with visa conditions. He wants to return to his country, after he completes his study and his experience as a pastor, to teach the gospel.

13. The applicant’s representative has submitted that the delegate did not have regard to all the factors set out in cl.401.214. It is submitted the applicant has complied substantially with the conditions attached to his last substantive visa, and any subsequent bridging visa. He asserts he intends to comply with visa conditions on a Subclass 401 visa. The nominated position for which he is applying for the visa is the subject of an approved nomination (the Department approved it on 21 May 2015). He refers to the PAM3 policy on those factors. He asserts the delegate gave excessive weight to the applicant’s migration history. He refers to the Federal Circuit Court judgement in Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971 where essentially the Court stated that the expression ‘intends genuinely to stay in Australia temporarily’, when used in relation to a person who applies for a Subclass 573 visa, means ‘intends to stay in Australia only during the time for which a Subclass 573 visa applied for will be valid’. Manousaridis J found that a person may consistently intend both to reside permanently in Australia, if the person obtains a visa to do so, and to leave Australia at the end of the visa period if, by the end of the period, the person obtains no further visa that would permit him or her to stay in Australia beyond that period.

14. The applicant provided a letter from Senior Pastor Kim of the Sydney Full Gospel Church stating the applicant has been working as a pastor for the church since December 2010 and the church needs his skills and experience and wants to nominate him.

15. At the hearing the applicant confirmed that he first travelled to Australia in March 1991 as the holder of a Student visa. He studied for about 18 months. He then returned to Korea for about 3 months, and then he returned to Australia. He told the Tribunal he then travelled back and forth between Korea and Australia between 2000 and 2009. He acknowledged that since 2009 he has mostly lived in Australia, having entered Australia as the holder of a Tourist visa. He has also held Student visas to study theology at Hope College. When asked about his qualification he could not remember what it was called. He indicated it was a Diploma. His representative then provided the particulars of his qualifications.

16. The Tribunal noted that applicant has been studying for several years in Australia but has only achieved qualifications at the Diploma level. He indicated that he only studied at Hope College and it only offers Diplomas. He claims he paid fees of about $6000 per year and paid Hope College about $24000 in total.

17. The Tribunal noted the applicant’s evidence that his son has been studying in Australia at the same time. It asked about the costs involved in his son’s education. He indicated his secondary school fees were up to $20000 per year and his tertiary fees have been $30000 per year. His son has been studying Law at UTS.

18. The Tribunal estimated the costs involved in his son’s education were about $100,000. It asked about the source of those funds. The applicant indicated he had borrowed significant sums and that he and his wife and son have all been working 20 hours per week in Australia as permitted by their visa conditions. The Tribunal asked about their employment. He indicated they do house cleaning. He indicated he started a home cleaning business in 2010. The Tribunal asked if he had tax records for the business and their income. The applicant then indicated he was working for someone else; Spotless, TEESS and AAA cleaning. The Tribunal asked about his ATO Notices of Assessment. He indicated he did not think he had any. He indicated he had been working for cash. The Tribunal raised its concern that the applicant may not have been paying income tax and had no means of verifying the particulars of his employment, his income, or the income for the business. This is relevant to his compliance with conditions on work limitations. He indicated he was not sure what he had to do regarding tax. He indicated he left it up to his employers to deal with any tax issue. He indicated he thought the companies were paying his tax. He acknowledged however that he has never lodged a tax return in Australia, despite running his own business and working here as a cleaner for several years. The Tribunal raised its concern that it might also consider this to be a relevant matter. He then claimed he worked here for only a short period and that he brought a significant amount of money with him from Korea, about $100,000.

19. The Tribunal noted that it had accessed an advertisement on the internet referring to Kevin’s Cleaning Service which used his mobile phone number. It asked about his cleaning business. He indicated it had only 20 customers and cleaned only about 12-13 houses. The Tribunal noted the advertisement was for a cleaning woman to work in his business. The applicant indicated that some time ago he hired a person to work part-time. He did not know that the ad was still on the internet. The third named applicant indicated that companies put ads on their websites to make their business look popular and they think this is what happened.

20. The Tribunal asked about the applicant’s employment with Sydney Full Gospel Church. He indicated he has been employed there as a Parish Leader since December 2010. The Tribunal asked how many hours per week he has been employed. He indicated he could not say exactly. He then indicated he does not hold a religious worker visa so he cannot work for the church. He then indicated he worked only weekends, Saturdays, Sundays or Friday nights when needed. He indicated it has only been in a voluntary capacity. He claimed that he has never been paid by the church.

21. The Tribunal asked about the hours he worked as a cleaner. He claimed he only ever worked up to 20 hours per week as permitted by his visa condition but could not be more specific. He claimed he has been doing this cleaning work for less than 2 years. The Tribunal noted that this appeared inconsistent with his earlier oral evidence and the information on the internet, as the advertisement is dated June 2014.

22. The Tribunal asked the applicant why he set up a cleaning business if he was intending to remain in Australia only temporarily. He indicated he used to work for AAA cleaning as a subcontractor. He could not do that job alone so he needed to advertise. He used a business name to make it sound like a business advertisement. He claimed he was just using a business name; not running his own business. He had to work so he got an ABN.

23. The Tribunal noted the applicant had acknowledged that he had a condition on his student visa, restricting the number of hours he was permitted to work. It raised its concern that the applicant appears to have worked both at his cleaning business and at the church and this may have been more than 20 hours per week. The applicant indicated his work for the church was only voluntary so did not count. The Tribunal also asked the applicant if he could provide records from Spotless, TEESS and AAA confirming that he did not work more hours than allowed by his visa conditions. The applicant indicated that he did not have these records as, when he worked for Spotless, he was employed by various subcontractors and not paid by Spotless.

24. The Tribunal asked the applicant about his intentions regarding his stay in Australia and what he intends to do if he is granted a religious worker visa. He indicated that he intends to work voluntarily in Australia for 2 years and then he will be able to work as an evangelist. He indicated he intends to remain in Australia for another 2 years, from the time the visa is granted and then return to Korea.

25. The Tribunal asked the applicant what he intends to do with his cleaning business. He indicated he will quit his business and close it down. He indicated that if he is hired by the church he will not need to run his business. The Tribunal asked, in those circumstances, who would pay his son’s $30000 per year tuition fees. He indicated his son will do casual jobs to pay for his education. The Tribunal asked if this was a plausible arrangement given the work limitations on his son’s visa. He indicated he will be paid by the church and his wife will continue to work.

26. The Tribunal raised its concern that it may not be satisfied the applicant genuinely intends to stay in Australia temporarily to carry out the occupation or activity for which a religious worker visa is granted. The applicant asserted he would like to go back to Korea to evangelise. The Tribunal asked about the particulars of that plan. He indicated he did not have a specific church for which he will evangelise but thought the Full Gospel Church would probably have a church in Korea. When asked where he intends to live he indicated he did not have a particular city but thought he might return to Busan.

27. The Tribunal noted the applicant’s migration history may indicate a strong desire to remain in Australia. He indicated that when his son was young and studying here he needed to be here but now his son is over 18 and can take care of himself.

28. The Tribunal asked the applicant if he had any further evidence to give as to why it should be satisfied he genuinely intends to stay in Australia temporarily to carry out the occupation or activity for which the visa is granted, and that he will comply with visa conditions. He indicated that in 1986 his brothers and sister migrated to Australia and tried to get him to migrate here. In 1991 he came here to study and in 1992 he established a travel agency encouraging tourists to travel to Australia. Since then he has come to Australia as a student and tourist. He has stayed to undertake theology studies. His goal however is to return to Korea to evangelise.

29. The second named applicant told the Tribunal that the advertisement was put on the internet by his mother.

30. The Tribunal indicated to the applicants that it may need to write inviting their comments on certain information before making its decision. The Tribunal agreed to give the applicants time to provide further documentary evidence.

31. After the hearing the applicants provided to the Tribunal a submission arguing that with respect to condition 8104 PAM3 states that students may undertake voluntary work outside their 40 hour per fortnight limitation where their main purpose is to study in Australia and the voluntary work remains incidental to this, and their work would not otherwise be undertaken by an Australian resident and the work is genuinely voluntary. It is submitted that this is the case for the applicant and therefore his cleaning work is not a breach of the condition. The applicant also submits that he made a mistake by not lodging tax returns and that he will contact a tax agent to do this as soon as possible. He asserts he will return to Korea after training and evangelising here for 2 years. He provided his Certificate IV in Christian Ministry and Theology dated 7 July 2011, his Diploma in Christian Ministry and Theology dated 2 July 2012, his Advanced Diploma in Christian Ministry and Theology dated 13 August 2013, and his Vocational Graduate Certificate in Christian Ministry and Theology dated 18 December 2013.

32. The applicant also provided evidence that he had registered as a sole trader in September 2011 but ceased registration on 7 September 2015 and that his wife registered as a sole trader from 27 April 2015.

33. The Tribunal wrote to the applicant under s.359A of the Act on 7 November 2016 providing the particulars of information regarding the registration of his business trading in the name ‘Kevin’ on 12 September 2011, and his advertisement for a cleaning position dated 11 June 2014. The Tribunal noted the position was advertised for cleaners for 4 days a week. It noted the mobile number provided in that advertisement is the same as the number he has provided to the Tribunal. It provided particulars from his movement records and visa condition 8105 in relation to work limitations. The Tribunal explained the relevance and the consequences if it made certain findings.

34. The applicant in response stated that he had classes at Hope from July 2010 to July 2014 on Mondays and Tuesdays and he worked as a cleaner for 5-6 hours on Wednesdays, Thursdays, Fridays and for 2-3 hours on Saturdays. He stated the advertisement was for a temporary partner because his cleaning partner could not work for a short period. He provided evidence from his church that his work at the church was voluntary. He denied remaining in Australia to continue working as a cleaner and claimed the work was only conducted so he could study. He claims his future costs and his son’s tuition fees are affordable as his wife and son will acquire part time work.

    Genuine temporary stay

35. The issue in this case is whether the applicant meets cl.401.214 which requires that he genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, having regard to:

    ·whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held was subject;

    ·whether the applicant intends to comply with the conditions to which the Subclass 401 visa would be subject; and

    ·any other relevant matter.

36. The Tribunal has taken into account the representative’s submissions that the delegate put too much emphasis on the applicant’s migration history and did not take into account the other factors set out in cl.401.214.

37. The Tribunal has first considered whether it is satisfied the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held was subject. There is no evidence before the Tribunal to indicate that the Department has been concerned that the applicant has not complied with visa conditions. The Tribunal however raised with the applicant its concern that he may not have complied with condition 8105. It takes into account his response that PAM3 states that voluntary work which is incidental to the applicant’s study can be undertaken without breaching condition 8104 and 8105. However the Tribunal remains concerned that the applicant does not have verifiable evidence regarding the hours he worked as a cleaner while subject to condition 8105. Despite starting his own cleaning business, on his own evidence, he has not lodged a tax return since commencing the cleaning employment. His evidence about when he undertook this employment was inconsistent. He provided evidence to the Tribunal that he commenced the employment in 2010 and the business later when he registered the trading name in September 2011. However in his oral evidence he indicated to the Tribunal that he only worked for a short period and had been doing the cleaning work for less than 2 years, that is, since 2014. The Tribunal does not accept that the applicant was unaware that he is required to pay income tax in Australia. It considers his evidence on this issue to be disingenuous. It notes that the applicant has now written to the Tribunal claiming that he worked as a cleaner on particular days for a certain hours. However it also notes that when asked at the hearing about the hours he worked as a cleaner he indicated that he could not be specific. It has concerns that his subsequent written evidence may not be reliable and may be contrived to appear to be consistent with the work limitations of condition 8105. On the basis of the evidence before it, the Tribunal is not satisfied the applicant complied with condition 8105 as it has doubts that his oral and written evidence on this issue is reliable.

1. Overall the Tribunal accepts that while the Department has not raised concerns as to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held was subject, the Tribunal has concerns as to whether he has been complying with work limitation conditions since he registered the trading name ‘Kevin’ in September 2011 and started cleaning as a subcontractor and for his own cleaning business.  The Tribunal finds it particularly concerning that the applicant has not paid tax since he commenced that work, having been paid cash and not ever lodging a tax return.

2. In these circumstances the Tribunal has some concerns as to whether it can rely on his assertions that he intends to comply with the conditions to which the Subclass 401 visa would be subject. When asked how he would be able to repay a significant debt incurred in relation to his and his son’s study, he indicated that his future costs and his son’s tuition fees are affordable as his wife and son will acquire part time work. He indicated he will receive $50000 from the church. He also claims he will cease working as a cleaner. The Tribunal has concerns that this is not the case. While it accepts the applicant cancelled his ABN status from September 2015 and his wife registered as a sole trader from April 2015, his oral evidence indicates he has continued to work as a cleaner 4 days a week. Overall the Tribunal has some concerns that the applicant will continue to work as a cleaner even if he is granted a religious worker visa and this will not be in compliance with conditions imposed on a religious worker visa.

3. With respect to other relevant matters, the Tribunal has also considered the applicant’s migration history as he described at the hearing and as set out in the delegate’s decision record provided to the Tribunal by the applicant. The applicant first came to Australia in 1991. He returned to Korea for about 3 months, and then he returned to Australia. He then travelled back and forth between Korea and Australia between 2000 and 2009. He has acknowledged that since 2009 he has mostly lived in Australia, having entered Australia as the holder of a tourist visa. As the delegate noted if the temporary visa is granted this would result in the applicant staying in Australia for up to 8 years continuously, as the holder of temporary visas. The Tribunal is of the view his migration history demonstrates a strong desire to remain in Australia.

4. The Tribunal has considered the representative’s reference to the judgment in Khanna. However it notes in that case the applicant’s aspirations to ultimately remain in Australia were clearly expressed when she indicated that she wished to settle in Australia in the long term. In the Tribunal’s view His Honour’s judgment resolves the apparent tension between the genuine temporary entrant criterion and the skilled migration scheme which provides international students with legitimate pathways to permanent migration. The judgment makes it clear that an applicant’s aspirations to obtain permanent residency and/or exploration of pathways to permanent residency will not necessarily amount to a lack of genuine intention to remain temporarily for the purpose of this criterion, and that it would be legally wrong to proceed on the assumption that an aspiration to obtain permanent residency is necessarily inconsistent with a genuine intention to remain temporarily in the relevant sense. Instead, the relevant question for the Tribunal will be whether the applicant genuinely intends to comply with the conditions of their Student visa to the extent that they will depart before the cessation of the visa unless legitimate pathways to permanent residency become available to the applicant while onshore. The Tribunal is of the view the facts in this case are different. The applicant has not indicated that he intends to explore legitimate pathways to permanent residency. He has claimed that he intends to return to Korea to evangelise. However for the following reasons the Tribunal has some doubts that this is his intention.

5. First when asked about his qualifications, the applicant was unable to tell the Tribunal what he had achieved. He was only able to indicate that he had been awarded at the Diploma level. He relied on his representative to explain his progress through the various courses at Hope. In fact after the hearing he provided copies of his qualifications and his highest award was a vocational graduate certificate. The Tribunal is not satisfied that the applicant was particularly engaged with his theological studies.

6. Secondly the Tribunal considers his evidence about his plans to evangelise in Korea to be vague and lacking in persuasive detail. The Tribunal is of the view that, by this stage, if the applicant genuinely intends to return to Korea to embark on a commitment to evangelising he would have a better idea about which church he would be working with and where in Korea he would be evangelising. The Tribunal is of the view his evidence on this issue does not demonstrate a commitment to returning to Korea to evangelise. The Tribunal is concerned that his lack of enquiry and planning on this issue indicates that he does not genuinely intend to return to Korea. In these circumstances the Tribunal is concerned that, once the applicant’s temporary religious worker visa expires, he will seek to remain in Australia by another obtaining another temporary visa. Given these concerns the Tribunal is not satisfied the applicant genuinely intends to stay in Australia temporarily. While he has asserted that his son is now over 18 and he no longer needs to remain in Australia to care for him, the Tribunal is concerned the applicant may seek to remain in Australia after the a religious worker visa expires. It is not satisfied he will return to Korea after 2 years of training with the Full Gospel Church.

7. The Tribunal also considers it relevant that the applicant has been working in Australia as a cleaner for several years and cannot demonstrate that he has paid income tax. He acknowledges he has not lodged a tax return. The Tribunal does not accept that he was unaware of this requirement. It is of the view the applicant’s failure to pay income tax and lodge tax returns cast some doubt on his credibility.

8. Overall the Tribunal accepts that the Department has not raised concerns about the applicant’s compliance with conditions on his last substantive visa or any subsequent bridging visa. However it has concerns, based on the lack of verifiable evidence about his employment in the last several years that he may not have been complying with conditions relating to work limitations. The Tribunal has not seen verifiable evidence confirming the hours he has worked since he started cleaning or he registered the trading name in September 2011. This concern is heightened by the fact that he has not lodged tax returns and has no evidence that he has paid income tax since commencing his cleaning employment and business several years ago. It is concerned that it cannot rely on his oral evidence that he will comply with visa conditions if a religious worker visa is granted as it is concerned he will continue to work as a cleaner. The Tribunal finds his migration history demonstrates a strong desire to remain in Australia. It also finds his evidence regarding his plans to evangelise in Korea to be lacking in detail and unpersuasive. It has concerns that the applicant will seek to remain in Australia at the end of the visa period if a religious worker visa is granted. Having considered all of the relevant evidence the Tribunal is not satisfied the applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted. Therefore, cl.401.214 is not satisfied.

9. 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

10. The Tribunal affirms the decisions not to grant the applicants Temporary Work (Long Stay Activity) (Class GB) visas.

    Denise Connolly
    Member