Choi (Migration)

The Administrative Appeals Tribunal considered the case of Mr Choi, a citizen of Korea, who sought a Temporary Work (Long Stay Activity) (Class GB) visa (Subclass 401) in the Religious Worker stream. Mr Choi claimed to be a Minister of Religion and intended to take up the role of Pastor for the Sydney Full Gospel Church. He had resided in Australia with his wife and son since September 2009, and his son had commenced tertiary studies in Australia in February 2015.

The primary legal issue before the Tribunal was whether Mr Choi was a genuine temporary entrant, as required for the grant of a Subclass 401 visa. This involved assessing whether he genuinely intended to stay in Australia temporarily to undertake the occupation for which the visa was sought, or if his extended periods of stay indicated a different intention. The Tribunal also had to consider the policy guidelines regarding the intention of the Subclass 401 visa program, which is not designed for individuals seeking to remain in Australia for extended durations.

The Tribunal affirmed the delegate's decision to refuse the visa. It noted that Mr Choi had spent a significant amount of time in Australia since February 2009, accumulating over five years of presence, with only a short period offshore. His history of onshore visa applications, including multiple student visas, indicated a pattern of extending his stay. While Mr Choi provided a statement explaining his evolving circumstances, including his son's university studies and his own religious aspirations, the Tribunal found that the requirements for the Religious Worker stream of the Subclass 401 visa had not been met. The delegate's conclusion that the visa would be contrary to the program's intention for temporary stays was upheld.

Consequently, the Tribunal affirmed the decisions not to grant the applicants Temporary Work (Long Stay Activity) (Class GB) visas.