Kwak (Migration)

This matter concerned an appeal by Mr. Won-je Kwak and Ms. Ju Ri Kim against a decision not to grant them Temporary Business Entry (Class UC) visas, subclass 457. The primary issue before the Tribunal was whether Mr. Kwak, who had been substituted as the primary applicant, met the English language proficiency requirements stipulated by clause 457.223(4)(eb) of the Migration Regulations.

The Tribunal was required to determine if Mr. Kwak had achieved the specified test score in a single attempt within the period prescribed by IMMI 14/009, which was the relevant legislative instrument at the time of application. The Tribunal also considered whether Ms. Kim's previously submitted IELTS test result was relevant, given Mr. Kwak was now the primary applicant, and whether Mr. Kwak met the salary exemption criteria under subclause (6). Furthermore, the Tribunal considered a request to refer the matter to the Minister for discretionary intervention under section 351 of the Migration Act, based on submissions concerning compassionate circumstances, including the impact on their Australian citizen child.

The Tribunal reasoned that clause 457.223(4)(eb) required the primary applicant to have undertaken an English language test and achieved the specified score within a particular timeframe. The visa application was lodged on 25 July 2014, meaning the relevant period for the English language test concluded on 25 July 2017. Mr. Kwak's IELTS test was undertaken on 8 May 2018, which fell outside this specified period. Although his test results met the required score, they were not achieved within the prescribed timeframe. The Tribunal also noted that Mr. Kwak did not meet the salary exemption criteria. Consequently, the Tribunal concluded that Mr. Kwak did not satisfy the requirements of clause 457.223(4)(eb).

Despite finding that Mr. Kwak did not meet the primary criteria, the Tribunal considered the submissions regarding ministerial intervention. It acknowledged the compassionate circumstances presented, including the separation of their Australian citizen child from his parents, and the complexities arising from the extended processing time and changes in visa legislation. The Tribunal decided to refer the matter to the Department for consideration by the Minister under section 351. However, the Tribunal affirmed the decision not to grant the subclass 457 visas, as the applicants did not meet the required criteria and the secondary applicant did not meet the criteria to be a member of the family unit.