Kwak (Migration)

[2021] AATA 655

Kwak (Migration) [2021] AATA 655 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Won-je Kwak
Ms Ju Ri Kim

CASE NUMBER:  1933109

DIBP REFERENCE(S):  BCC2014/1820290

MEMBER:Cathrine Burnett-Wake

DATE:29 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 29 January 2021 at 5:07pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – exemptions from the English language requirement – applicant’s spouse substituted as the primary applicant – IELTS Test result outside the relevant period – achieved within the period specified – referral for Ministerial Intervention – Australian citizen child – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 46, 65, 351
Migration Regulations 1994, Schedule 1; Schedule 2 cl 457.223; r 2.07

CASES

Guder v MIBP [2017] FCCA 2527     

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 25 July 2014. It should be noted that at the time of primary application, Ms Ju Ri Kim was the primary applicant. However, during processing the occupation she was nominated under, Hair and Beauty Salon Manager, was removed from the relevant instrument of occupations for 457 visas. As such, Mr Won-je Kwak was substituted as the primary applicant under a different occupation. If this legislative change had not occurred and Ms Ju Ri Kim remained the primary applicant, this matter would not be before the Tribunal for consideration of cl.457.223(4)(eb).

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visas on 15 November 2019 on the basis that cl.457.223(4)(eb) was not met because the available information does not indicate that any of the exemptions from the requirement to demonstrate English language proficiency by way of an English test specified in the relevant legislative instrument apply in the circumstances of this application. The applicant has not claimed such an exemption, nor have they provided any evidence in this regard.

5. The applicants appeared before the Tribunal on 5 November 2020 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

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(eb).

   English language proficiency

9. The English language requirements for this visa are set out in cl.457.223(4)(eb) and (ec). They differ depending on the applicant’s circumstances. In the present case cl.457.223(4)(eb) is relevant. It requires that:

   ·if the applicant is not an exempt applicant as described in IMMI 14/009; and is not a person who will be paid at least a level of salary specified in that instrument in circumstances where it is considered the granting of the visa would be in the interests of Australia; then he or she must have achieved in a single attempt a test score specified in that instrument in the specified time.

10. IMMI 14/009 was the instrument in place at the time of visa application on 25 July 2014.

11. The specified time prescribed in IMMI 14/009 at paragraph [4] sets out the period of three years from the date of the visa application is relevant for the purposes of satisfying cl.457.223(4)(eb).

12. During the hearing the Tribunal discussed with the applicant and the representative that it had formed the preliminary view that as the applicants applied for the visa on 25 July 2014 and in accordance with IMMI 14/009, the specified period the applicant (Mr Won-je Kwak) was required to have achieved the required English language proficiency in a single attempt ended on 25 July 2017.

13. During the hearing, the Tribunal noted that when the 457 application was submitted, that the record of response outlined an IELTS test was undertaken by Ms Ju Ri Kim and that her results met the required score as per paragraph [3] of IMMI 14/009.

14. The Tribunal also discussed with the applicant and representative that it had formed the preliminary view that as Mr Won-je Kwak had been substituted as the primary applicant, he is subject to cl.457.223(4)(eb) and Ms Ju Ri Kim’s IELTS test, although meeting the required score in accordance with IMMI 14/009, was not relevant to its determination of 457.223(4)(eb) as she was not being assessed as meeting the primary criteria to be satisfied at the time of decision.

15. At the time of review, Mr Won-je Kwak provided the Tribunal with a copy of an IELTS Test Report Form. This IELTS result relates to an English test he undertook on 8 May 2018. The test results indicate he scored 5.0 in each band of Listening, Reading, Writing and Speaking and achieved an Overall Band Score of 5.0. The Tribunal discussed with the applicant and representative that in its preliminary view, this IELTS test result, although met the required score as per paragraph [3] of IMMI 14/009, falls outside the relevant period the test must have been undertaken in accordance with paragraph [4] of IMMI 14/009.

16. It was further discussed during the hearing, that as the applicant will not be paid at least a level of salary specified in paragraph [6] of IMMI 14/009 and because he has not achieved in a single attempt a test score specified in the instrument within the specified time, the Tribunal had formed the preliminary view that Mr Won-je Kwak would not be able to satisfy the requirements of cl.457.223(4)(eb).

17. The representative requested the opportunity to provide post hearing submissions to address cl.457.223(4)(eb) and to also provide submissions for the Tribunal to consider referring the matter to the Minister pursuant to s.351 if the Tribunal was not persuaded with its arguments.

    Post hearing submissions

18. The Tribunal received the written submissions from the applicant’s representative which relevantly state:

    The Applicants disagree with the Member on the interpretation of the 457.223(4)(eb) and the associated instrument IMMI14/009.

    5.7. Ground 1: The Application was lodged in 2014. At the time of Application, Ms KIM provided her English test result (Exhibit 1, IELTS test result of Ms KIM) showing that she met the language requirement. Due to the legislation change, Mr KWAK had taken an English test on 08 May 2018, and lodged the application 19 October 2018 to “change the roles”. (Exhibit 2, Change of roles request, made by the Department of Home Affairs, dated 19 October 2018). His Application is merely five months apart from his application to change the roles.

    5.8. Ground 2: The word “period” was mentioned twice in the relevant legislation: 457.223(4)(eb)(v),

    “achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument”

    And IMMI14/009 Paragraph 3

    “the period of three years from the date of the visa application”.’ | 3

    From 457.233(4)(eb)(v), the reader can agree that the language ability must be achieved during a “period”. However, the “period” is not defined in the same place. The Regulation empowered the minister to prescribe an instrument to specify. In the IMMI14/009, the minister specified the start date of the “period”, being “three years from the date of the visa application”, in this case, either 26 July 2011 (the first application), or 20 October 2015 (the role change application). However, the minister did NOT specify an end date of the “period”. It means that the minister has specified an open period of time, without enforcing an end date. We submit that the IELTS test result of Mr KWAK sits well in this period.

    5.9. Ground 3: The purpose of this legislation is to ensure that the 457 Visa Applicants have the adequate language ability to carry out their work in Australia. Having a starting date serves the purpose by ensuring the test result being current. Narrowing the “period” and enforcing an end date does NOT serve the purpose, as the test result closer to the date of decision shows the language ability of the applicant more accurately. It is submitted that the interpretation of the language ability requirement should be broad, and allowing the broader interpretation does not disrupt the 457 Visa application assessment process in general. This is especially true considering the 457 Visa application is closed to new applicants.

19. In relation to Ground 1 of the submissions. The representative contended that the ‘date of application’ should be considered 19 October 2018, being the date, the applicants notified the Department of their request for Mr Won-je Kwak to be considered against the primary criteria. Therefore, on that basis the representative’s argument was if 19 October 2018 was considered the date of application then the IELTS undertaken by Mr Won-je Kwak on 8 May 2018 could be considered as it was taken within 5-months of the proposed ‘date of application’. The Tribunal rejects this contention in its entirety. Together s46 of the Act, regulation 2.07 and Regulations Schedule 1, specify the requirements for making a valid application for most visa classes and relevantly for a subclass 457 visa. The applicants writing to the Department to request a change in primary applicant does not and cannot met the threshold of making a valid application as legislatively prescribed.

20. In relation to Ground 2 of the submissions the Tribunal rejects the contention that period is not defined, and it can be interpreted as an ‘open period of time without enforcing an end date’. In the Tribunal’s view the specified time prescribed in IMMI 14/009 at paragraph [4] clearly sets out the period of three years from the date of the visa application is relevant for the purposes of satisfying paragraph 457.223(4)(eb). This interpretation is further supported in Guder v MIBP [2017] FCCA 2527 at [15]. This judgment considered IMMI15/028 (a later version of IMM14/009) and interpreted the wording in IMMI15/028 to mean that the allowable time frame for satisfying the English language proficiency requirement was within 3 years after the date of the visa application.

21. In relation to Ground 3 of the submissions, and the contention that a broader interpretation should be adopted. The Tribunal rejects this suggested approach put forward by the representative. The Tribunal is of the view that 457.223(4)(eb) together with IMMI14/009 and the interpretation of period in Guder v MIBP [2017] FCCA 2527 is very clear that the specified 3 years from the date of the visa application is the period during which the English requirement can be met.

22. The Tribunal finds that the specified time prescribed in IMMI 14/009 at paragraph [4] sets out the period of three years from the date of the visa application is relevant for the purposes of satisfying clause 457.223(4)(eb).

23. The Tribunal further finds that as the applicants applied for the visa on 25 July 2014 and in accordance with IMMI 14/009, the specified period the applicant (Mr Won-je Kwak) was required to have achieved the required English language proficiency in a single attempt ended on 25 July 2017.

24. The Tribunal finds that the IELTS test that Mr Won-je Kwak undertook on 8 May 2018 falls outside the relevant period the test must have been undertaken in accordance with paragraph [4] of IMMI 14/009.

25. The Tribunal is therefore not satisfied that the Mr Won-je Kwak meets the requirements of subclause 457.223(4)(eb). 

26. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

27. The Tribunal must also affirm the decision to refuse to grant a subclass 457 visa to the second named applicant as they do not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 457 visa, and there is no evidence that they can meet the primary criteria in their own right.

    Referral request for consideration by the Minister pursuant to s.351

28. Following the hearing, the Tribunal received a request in writing from the applicant to refer the matter to the Minister to exercise their power under section 351 of the Act.

29. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

30. The representative’s submissions provided the following in relation to the applicant’s circumstance and how they meet the ministerial guidelines for consideration of discretionary power:

    9.2. Mr KWAK and Ms KIM’s child, Master KWAK, is an Australian citizen. Removing the KWAKs from Australia will certainly lead to “strong compassionate circumstance” where Master KWAK will be separated from his parents. Master KWAK is no longer a Korean citizen and it is uncertain if he can reside permanently in Korea. Even if the KWAK family contemplate the possibility of taking Master KWAK with them and reside in Korea, by doing so, Master KWAK will be deprived his citizen rights to access to Australian education, medical and social systems.

    9.3. It is submitted that an exceptional circumstance exists because the circumstance was not anticipated by relevant legislation. The 457 Visa Application in question took unusually long time. The IETLS result was provided some 4 years after the initial date of Application, and the Nomination is expired. Before the closure of the 457 Visa program, it was possible to make a new Nomination to replace the expired one. However, it is no longer possible.

    9.4. It worth mentioning that in the Migration Regulations for the 482 Visa (as the replacement of the 457 Visa), a similar Nomination is valid for “12 months after the day on which the nomination is approved unless, at that time, there is a visa application made by the nominee on the basis of the nomination that has not been finally determined”. It shows that the “updated’ version of the legislation has considered the situation, however, it was not anticipated by the legislation in the 457 Visa.

    9.5. It is submitted that an exceptional circumstance also exists because throughout the years, the KWAK family has built deep ties to the Australia society and community through business, cultural, personal, and religious activities.

31. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

32. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Cathrine Burnett-Wake
    Member

    
    

33. DECISION

34. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Cathrine Burnett-Wake
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.