|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Appeals Tribunal of Australia |
Last Updated: 24 April 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) | |
|
|
Re |
JONG HAK KIM GWAN JUN KIM HGUN JI KIM |
|
|
And |
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS |
Tribunal |
Mr B J McCabe, Member |
Decision
|
|
The Tribunal affirms the decisions under review. |
(Sgd) B J McCabe
IMMIGRATION AND CITIZENSHIP - Business Skills Visa - whether primary visa holder has obtained a substantial ownership interest in an eligible business in Australia - whether primary visa holder making genuine attempts to obtain a substantial ownership interest in an eligible business in Australia - whether secondary visa holders will suffer extreme hardship if their visas are cancelled
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961
24 April 2003 |
Mr B J McCabe, Member |
|
|
|
INTRODUCTION
1. The Minister's delegate decided to cancel the Business Skills visa of Mr Jong Hak Kim on 6 August 2002. The visas of Mr Kim's children, Mr Gwan Jun Kim and Ms Hyun Ji ("Jenny") Kim, were also cancelled. The applicants have asked the Tribunal to review the delegate's decision.
MATERIAL BEFORE THE TRIBUNAL
2. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It was also provided with statements of Jenny Kim and Gwan Jun Kim. Both of these individuals gave oral testimony. Ms Kim appeared in person while Mr Kim gave evidence over the telephone from Japan. The Tribunal was also supplied with a number of other `background' documents by the applicant, including an extract from the Korean constitution, information about military service in the Republic of Korea, correspondence with Ms Kim's professors and information regarding academic opportunities for gifted musicians.
3. Mr Kim Snr did not give evidence. I was informed that Mr Kim was content for the decision with respect to his business visa to be dealt with on the papers.
4. The applicants were represented by Mr Jacques of Jacques Hong Migration Services. The respondent was represented by Mr Cramer.
JONG HAK KIM
(i) the facts
5. Mr Kim Snr is a prosperous businessman from South Korea. His business manufactures tiles that he exports to Australia, amongst other places. Mr Kim applied for and was granted a permanent resident visa on 26 February 1999. The visa was granted on the basis he was to establish a business in Australia.
6. Mr Kim had earlier been in discussions with a Korean business acquaintance who ran an import-export business in Australia. There was apparently a tentative agreement for Mr Kim to invest in the company, Tradeport International (Australia) Pty Ltd. Mr Kim says he intended to take an interest in the company and it would become a distributor of his products here, and perhaps a manufacturer and exporter as well. He also described the arrangement as a joint venture with Tradeport. Mr Kim apparently paid over some money to his prospective partner. In any event, the arrangement did not come to fruition. It was never formally documented and Mr Kim declined to put any more money into the business until a way forwarded had been found. He did arrange a small number of orders for Tradeport's products through his own business network. He also provided business advice to Tradeport.
7. In the meantime, Mr Kim was investigating sites for a factory to manufacture tiles. He wanted to build outside Korea and was considering a number of sites around Asia, including Australia. He has not reached a concluded view about where the factory should be built.
8. Mr Kim is in Australia for approximately three to four months per year. He continues to spend a lot of time in Korea where his main business is located. He continues to deal with Australian businesses, and his son and daughter were educated here, and continue to reside here.
9. Mr Kim Snr says he is continuing to investigate the possibility of doing business in Australia. It seems he is confident of proceeding with construction and establishment of a business, either in his own right or in connection with Tradeport, if the doubts over his business visa can be resolved. He says he has already invested around $35,000 by way of loan to Tradeport, and he has arranged over $30,000 in sales for the company through his network.
(ii) the law
10. The Minister says that Mr Kim's business visa should be cancelled pursuant to s 134(1) of the Act because the Minister was satisfied Mr Kim:
"(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his skills in actively participating at a senior level in the day-to-day management of that business; or
(c) does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day-to-day management of;
an eligible business in Australia."
11. Section 134(2) provides, however, that the Minister must not cancel a business visa under s 134(1) if the Minister is satisfied Mr Kim:
"(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
(c) intends to continue to make such genuine efforts."
12. Section 134(3) sets out a non-exhaustive list of matters that might be taken into account when the Minister considers whether he is satisfied as to the matters set out in sub-section (2).
13. There did not appear to be any dispute that Mr Kim has not acquired a substantial ownership interest in an Australian business. There was also no evidence that he had actively participated in senior management of such a business. It follows that the Minister may properly cancel Mr Kim's visa unless he is satisfied as to the matters in sub-section (2), having particular regard to the matters in sub-section (3).
14. There is little in the way of documentary evidence to support Mr Kim's case. For example, the negotiations and arrangements with Tradeport were never fully documented. Those negotiations appear to have reached an impasse. There is limited evidence of investigation of sites for factories in Australia, although Mr Kim conceded he was also looking at sites in Vietnam. He apparently relied on family members and business associates to make inquiries on his behalf. His statement, included at T18, does not suggest a detailed and systematic inquiry.
15. Mr Jacques suggested the Tribunal should keep in mind that cultural differences might explain why little of what was planned or discussed was reduced to writing. He said Mr Kim was a very traditional Korean businessman who preferred to deal with his associates in person. That may be so, but the decision-maker is still required to satisfy himself as to the matters set out in the Act. He must be able to point to evidence from which he can be satisfied. While that evidence need not be documented, it must be of substance. In the Tribunal's view, Mr Kim has not presented sufficient evidence of the matters referred to in s 134(3) to enable the decision-maker to be satisfied as to the matters referred to in s 134(2). It follows the decision of the Minister with respect to Mr Kim must be affirmed.
GWAN JUN KIM
(i) the facts
16. Gwan Jun Kim has resided in Australia since 1993. He has recently commenced a relationship with a Japanese woman and has, as a result, spent a considerable time overseas with her. He says he thinks of himself as an Australian after having lived here for nearly a decade. He said in his statement and in his oral testimony that he thought he was able to stay here permanently. He says he does not identify with Korea and does not wish to return there.
17. Mr Kim Jnr is not currently employed, although he has obtained a business qualification and wishes to take up a career in management.
18. Mr Kim says he will be required to perform compulsory military service if he returns to Korea. The Republic of Korea has compulsory military service for able-bodied men. Mr Kim says he is aware of stories suggesting that military service in Korea is very unpleasant and dangerous. He says he has heard there is a high level of bastardisation in the armed forces, and older males with university qualifications obtained overseas might be particularly vulnerable. The Korean peninsula is in any event a dangerous place with a high risk of military conflict. Mr Kim conceded in his statement that he was unable to find documents or witnesses that would substantiate his claims.
19. Mr Kim also said his business career would be delayed if he had to undertake military service at this point. He added he has some difficulty in writing Korean, as his Korean language skills have started to deteriorate.
(ii) the law
20. Where the decision-maker decides to cancel a business visa, s 134(4) says the visas held by family members that were obtained on the strength of the primary visa holder's application must also be cancelled. Section 134(5), however, says the Minister must not cancel the secondary visas if cancellation "would result in extreme hardship to the person".
21. The requirement in s 134(5) was discussed in Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961. Deputy President McMahon confirmed it was necessary to look at the effect of the cancellation on that particular individual. He also confirmed the requirement that the hardship or adverse consequences must be extreme set a high standard. He said (at paragraph 29) that "hardship involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship...".. He also held the hardship must be extremely likely or even certain to follow from the cancellation.
22. I do not doubt it would be unpleasant and inconvenient for Mr Kim to leave Australia. I am sure he does not relish the prospect of military service, and that it would be a hard and perhaps dangerous experience. But it is apparently an experience that all young Korean men must endure, and clearly most of them survive it without incident. I would not wish to be understood as saying that the prospect of compulsory military service could never amount to extreme hardship. I also accept it would be inconvenient for him to delay commencing his business career - although it would not be nearly so inconvenient for him as it would be if he were being asked to interrupt his career.
23. In the absence of evidence about what makes military service in the Republic of Korea particularly objectionable or dangerous I cannot be satisfied that extreme hardship will (as opposed to might theoretically) follow from the cancellation of the visa in this case. The decision with respect to Mr Kim Jnr is therefore affirmed.
MS JENNY KIM
(i) the facts
24. Jenny Kim has resided in Australia since 1997. She was granted permanent residency in 1999; prior to that point, she was in Australia on a student visa. She says she regards this country as her home, and does not identify with Korea. She would not be required to undertake military service upon her return to Korea, and she is in any case several years younger than her brother.
25. Ms Kim is apparently a gifted musician. She plays the violin. She is currently enrolled as a student at Griffith University where she is completing her undergraduate studies. She is auditioning for a number of post-graduate courses and other opportunities, including competitions. She has ambitions of playing with a major Australian orchestra, such as the Sydney Symphony Orchestra. Ms Kim says she wants to remain in Australia and play for Australian audiences.
26. Ms Kim has been accepted into a masters course program at the National Academy of Music. She says this is the best way for her to achieve her goals. She says if she is forced to return to Korea, she will have to attend a Korean university where the standard of musical training is lower. She also fears she will not get credit for her Australian studies which would mean she had to enrol in an undergraduate course again. Apart from the cost and inconvenience, she says she would then be older, which means she will have more difficulty becoming established as a performer. The Tribunal was not provided with any evidence to confirm that Korean universities would be unable to meet Ms Kim's needs, although she pointed out it was not just the opportunities for study that were important.
27. There was some doubt about whether or not she could remain in Australia to complete her studies as a fee-paying overseas student. She said it was not just her access to tuition that was of concern: a performer must audition and undertake other activities that might advance her career. She said many of these opportunities were only available to permanent residents and citizens of Australia. It is clear it would be an advantage for Ms Kim to remain here.
(ii) the law
28. Section 134(5) directs the decision-maker to consider whether the applicant will suffer extreme hardship as a result of the cancellation of the visa. Ms Kim makes it clear in her evidence that she will be advantaged by staying here. It is less clear whether she will suffer extreme hardship if she returns to Korea. I am unable to be satisfied on the evidence presented to the Tribunal that she will suffer that high level of prejudice envisaged by the statute and discussed in Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961. She may yet return here to complete her studies on a student visa. She might be eligible to travel elsewhere overseas. Even if she remained in Korea, it is not clear that she would not be able to succeed in her chosen career there.
29. It follows that the decision with respect to Ms Kim is also affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed: Sarah Oliver
Associate
Date of Decision 24 April 2003
For the Applicant Mr Jacques, Jacques Hong Migration Services
For the Respondent Mr Cramer, Blake Dawson Waldron
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/369.html