Kim (Migration)

[2024] AATA 2188

Kim (Migration) [2024] AATA 2188 (11 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kyungmi Kim
Mr Chanjung Kim
Ms Siyeon Kim
Mr Doyeon Kim

CASE NUMBER:  2207065

HOME AFFAIRS REFERENCE(S):          BCC2020/2282845

MEMBER:Karen McNamara

DATE:11 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Activity (Class GG) visas.

Statement made on 11 June 2024 at 3:47pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – religious worker stream – Assistant Pastor – genuine temporary entrant – past visa history – cumulative stay of more than 9 years – children’s education – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 408.213

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 27 April 2022, to refuse to grant the applicants Temporary Activity (Class GG) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 11 September 2020. 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 (Cth) (the Regulations). At least one member of the family unit must satisfy the primary criteria, comprising the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.

3. In the present case, the first named applicant Mrs Kyungmi Kim (the applicant) is seeking the visa, to work for Sydney Jooan Church Incorporated as a religious worker in the position of Assistant Pastor. The second named applicant, Mr Chanjung Kim is the applicant’s spouse, the third named applicant (Ms Siyeon Kim) and fourth named applicant (Mr Doyeon Kim) are the applicant’s children. The secondary applicants are members of the applicant’s family unit and are dependent upon the grant of the applicant’s visa for approval for their visas.

4. The decision record provided to the Tribunal by the applicants, records that the delegate refused to grant the visas because the applicant did not meet cl.408.213 of Schedule 2 to the Regulations, which require the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The delegate found that the applicant’s past visa history already exceeds a cumulative stay of more than 4 years as the holder of Temporary Religious Worker visas, and that the grant of another Temporary visa would be contrary to the intention of the Temporary Activity program. Consequently, the applicants’ further visa application for the same activity was refused.

5. The delegate also found that the second named applicant Mr Chanjung Kim, third named applicant  Ms Siyeon Kim  and fourth named applicant  Mr Doyeon Kim could not be granted a Subclass 408 visa, as they did not meet the secondary visa criterion (cl.408.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 408 visa.

6. The applicants lodged an application for review with the Tribunal on 16 May 2022. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

7. On 15 March 2024, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 to appear before the Tribunal on 18 April 2024 at 11:30am.

8. Mrs Kyungmi Kim appeared before the Tribunal on 18 April 2024, to give evidence and present arguments. The Tribunal also afforded opportunity to Mr Chanjung Kim, Ms Siyeon Kim and Mr Doyeon Kim to provide oral evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

9. The Tribunal noted that the applicants wished the Tribunal to receive oral evidence from the applicant’s employer Dr Ki Hyun Jin and church member Mr Tae Yoon Song, via telephone. Despite the Tribunal undertaking numerous attempts to contact said witnesses neither were contactable. The Tribunal afforded opportunity for the applicant subsequent to the hearing, to obtain and submit written witness statements from these witnesses. 

10. Post hearing on 26 April 2024, the applicant provided to the Tribunal written statements from Dr Ki Hyun Jin and Mr Tae Yoon Song.

11. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

12. The Tribunal additionally has available for consideration, regard to Department policy, the Act and the Regulations and public information available from the internet.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant satisfies the criteria for the grant of the visa, in particular the requirement that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted: cl.408.213 of Schedule 2 to the Regulations.

    Genuine intention to stay temporarily – cl 408.213

15. 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.

    Background

16. In the present case, the applicant seeks the visa for the purpose of undertaking religious work as an Assistant Pastor for Sydney Jooan Church Incorporated (the sponsor). The applicant in her application to the Department, requested to stay in Australia to undertake religious work from 21 September 2020 to 21 September 2022.

17. Evidence before the Tribunal shows that the sponsor has provided the applicant with an employment contract, signed and dated by the parties on 25 August 2020, stipulating “This Agreement shall become effective in full force and effect for period of (2) years after the grant of Visa.” Evidence before the Tribunal shows the nominee has worked as a religious worker for Sydney Jooan Church Incorporated since August 2015.

18. The sponsor is a registered charity (registered 3 December 2012) recorded with the Australian Charities and Not for Profit Commission (ACNC) as being established in January 2008. According to ACNC available information[1], in 2023 the sponsor derived approximately 100% of its revenue through donations and bequests with total reported revenue of $304,873 and expenses of $428,923.

    [1] Source Sydney Jooan Church Incorporated | ACNC accessed 11 June 2024

19. Responsible persons for the sponsor include Ki Hyun Jin (Public Officer) and Committee Members Hei Kyoung Kim, Hyun Gyu Kang, Sejoon Heo and Taehong Park.

20. In considering whether a visa applicant genuinely intends to stay temporarily in Australia to carry out the activity for which the visa is granted, 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)). 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)).

21. Having considered all relevant information before it, the Tribunal finds no issue arising in this particular case concerning the applicant’s substantial compliance with conditions applying to her last substantive visa (cl.408.213(a)), or whether she intends to comply with the conditions to which a further 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)).

22. However, what is of concern to the Tribunal is whether the applicant genuinely intends to stay temporarily in Australia and arising from ‘other relevant’ matters as per the requirement of cl. 408.213 (c).

    Any other relevant matters

23. The delegate in their decision noted: “In deciding whether an applicant genuinely intends a temporary stay in Australia, delegates should also consider whether the applicant is attempting to circumvent proper migration channels through use of temporary visas to maintain ongoing residence in Australia. Under policy, it is not the intention that a visa holder remains in Australia on multiple grants of Subclass 408 visa for an extended period of time.

    If the grant of a Subclass 408 visa would result in an applicant exceeding four years stay in
    Australia as the holder of temporary visas, then the general policy position is that the period
    of stay granted should usually allow the holder only enough time to finalise their current
    assignment in Australia and depart.

    I have considered whether the applicant’s circumstance would be appropriate for a reduced
    period of stay. However, the applicant’s previous Religious Worker Visa (and fourth Religious Worker Visa the applicant has held) was granted on 24 March 2020 and upon granting this visa, the applicant was counselled about exceeding 4 years in Australia and applying for a more appropriate visa, should they wish to remain in Australia.

    I have also taken into account the applicant has cumulatively spent 3886 days in Australia
    since 2010. During this time in Australia, the applicant has been a Religious Worker for a
    total of 50 months.”

24. In respect of the Subclass 408 criterion, Departmental policy outlines a range of matters which may be relevant:

    ·the applicant’s circumstances in their home country – this may include their personal circumstances such as their current employment, family situation, future prospects and general circumstances of their country such as civil unrest, economic strife or famine;

    ·whether the position has been created to secure the person’s stay in Australia;

    ·the personal attributes and vocational or employment background of the applicant and their ability to undertake the role;

    ·whether the applicant’s proficiency in English is consistent with their supported activities (noting applicants are not required to undertake English language testing);

    ·further consideration should be given to the applicant’s intentions if it appears the applicant’s qualifications/competencies or background is significantly inconsistent with the supported activities.[2]

    [2] Policy – Migration Regulations – Schedules – Temporary Activity (Subclass 408) visa – Genuine entrant for temporary stay – clause 408.213 (reissued 29/2/2020).

25. Policy also directs decision makers to consider whether the applicant is attempting to circumvent proper migration channels through use of temporary visas to maintain on-going residence in Australia.

26. Department policy provides it is not the intention that a visa holder remains in Australia on multiple grants of a subclass 408 visa for an extended period of time. If the grant of a 408 visa would result in an applicant exceeding four 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 Australia 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.

    The applicant's length of stay in Australia

27. In this case the applicant's visa history in is an important consideration for the Tribunal, as the extended stays previously granted to the applicant, raise question as to whether given the intention of the visa program, a further stay is appropriate.

28. Department records show;

    ·   The applicant’s last arrival onshore was 21 January 2010 whilst holding a student visa (TU 570).

    ·   The applicant was initially granted a Temporary Work (Long Stay Activity) Religious Worker Stream (GB 401) visa on 24 December 2014

    ·   On 29 November 2016 the applicant was granted a further Temporary Work (Long Stay Activity) Religious Worker Stream (GB 401) visa.

    ·   On 25 January 2019, the applicant was granted a Temporary Activity (Class GG) Temporary Activity (Religious Work) (Subclass 408) visa.

    ·   On 24 March 2020, the applicant was granted a further Temporary Activity (Class GG) Temporary Activity (Religious Work) (Subclass 408) visa in effect until September 2020.

29. The delegate referenced in their decision that upon granting of the visa on 24 March 2020, the applicant was counselled about exceeding 4 years in Australia and should they wish to remain in Australia, applying for a more appropriate visa.

30. Information before the Tribunal shows that on 29 September 2020, the Department refused to approve a nomination application lodged by Sydney Jooan Church Incorporated in favour of the applicant under the Temporary Skill Shortage (subclass 482), Labour Agreement Stream. Department records show that the applicant is not the subject of any pending nominations currently lodged with the Department. Additionally, Sydney Jooan Church Incorporated does not currently hold a valid Temporary Activity Sponsorship (TAS).

31. At the hearing the Tribunal discussed with the applicant her visa history and plans for the future. The applicant told the Tribunal that she was relying on approval of a Labour Agreement to remain in Australia to continue her religious work with the Sydney Jooan Church Incorporated. The applicant was unaware of what steps (if any) the sponsor had taken since the refusal of the TSS (Labour Agreement) nomination in September 2020, to lodge an application for a more suitable visa to allow the applicant to stay in Australia and continue her religious work.

32. The applicant told the Tribunal that she needs to remain in Australia to continue her work with the Church and the need for her children to continue their education in Australia. The children addressed the Tribunal supporting the applicant’s evidence that Ms Siyeon Kim

    
    

    is currently undertaking her HSC studies and Mr Doyeon Kim is currently enrolled in a Professional Accounting Degree at Macquarie University. Both children have integrated well into their local community and to leave Australia would have a detrimental impact on their education.

33. Subsequent to the hearing, the Tribunal received written witness statements from Rev Dr. Ki Hyun Jin and Mr Tae Yoon Song. Both references attest to the applicant’s devotion to the Church, her role and responsibilities within the Church and support for her continual stay in Australia, including her children’s ongoing education.

34. Whilst the Tribunal has empathy for the applicants’ situation and acknowledges the circumstances as purported by the applicants, the Tribunal in conducting a merits review must come to the correct or preferrable decision on the basis of the information before it and in accordance with the applicable law.

35. Having consideration of the applicant’s visa history in Australia, the Tribunal is of the view that the applicant as a temporary visa holder, has carried out the activity of a Religious Worker continuously in Australia for over 9 years. The applicant was counselled by the Department in March 2020 about exceeding 4 years in Australia and applying for a more appropriate visa should she wish to remain in Australia. As noted previously in this decision a nomination to sponsor the applicant under a Labour Agreement was refused by the Department in September 2020. As at the time of this decision there is no compelling evidence before the Tribunal to support the applicant or the sponsor has lodged an additional application for a more appropriate visa, nor is there persuasive evidence to support the Church has made alternate arrangements for the applicant’s succession, or the applicant has taken constructive steps to finalise her assignment in Australia and departure.

36. The Tribunal has carefully considered the evidence before it including the submissions supporting the ongoing need for the sponsor to engage the nominee as an Assistant Pastor. Having regard to the applicant’s visa history which exceeds a cumulative stay of over nine years whilst holding Temporary Religious Worker visas and associated bridging visas, and the additional period sought for a further two years (which lapsed almost 2 years ago), the Tribunal on balance cannot be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa might be granted.

37. Whilst the Tribunal accepts the applicant contributes to her church community and is well regarded by them, it is not the intended objective of the temporary visa scheme to provide opportunity to individuals to maintain ongoing residency in Australia. The intention of the Temporary Activity visa in the case of a religious worker, is to carry out fulltime religious work for a religious institution in Australia and a stay for up to two years, not for 12 years as applicable in this case, should a further period be granted as submitted.

38. While there is some discretion attached to Department policy as a consideration, the Tribunal does not consider it reasonable to accept that an applicant whose total amount of time greatly exceeds the indicative four years in PAM 3, is not engaging in behaviour to circumvent proper visa channels.

39. The Tribunal therefore finds on the totality of the information before it, that the relevant matters considered do not weigh in favour of a further grant for the visa. The Tribunal therefore finds it cannot be satisfied that the applicant meets cl.408.213(c).

40. Accordingly, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and finds that the requirements of cl 408.213 are not met.

41. Clause 408.311 requires that a secondary applicant is a member of the family unit of the applicant (the primary applicant) who holds a Subclass 408 (Temporary Activity) visa.

42. As the Tribunal has found that the first named applicant does not meet the prescribed criteria for the grant of the visa, the second named applicant Mr Chanjung Kim, third named applicant Ms Siyeon Kim and fourth named applicant Mr Doyeon Kim as members of Mrs Kyungmi Kim’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named, third named and fourth named applicants do not satisfy cl.408.311(a) and accordingly do not meet cl.408.311.

43. Having regard to the children’s education, (particularly Ms Siyeon Kim who is currently studying year 12 for her HSC), the Tribunal requests the Department take this into consideration when advising the applicants on future arrangements to depart Australia.

44. As one of the essential requirements for the visa is not met, the Tribunal is not required to consider any remaining criteria and the decision under review must be affirmed.

    DECISION

45. The Tribunal affirms the decision not to grant the visa applicants Temporary Activity (Class GG) visas.

    Karen McNamara
    Member