Cho and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 112
•7 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 112
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1077
General Administrative Division ) Re IN SOO CHO Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block Date7 February 2005
PlaceSydney
Decision The decision under review is affirmed. [SGN] Deputy President J Block
CATCHWORDS
MIGRATION – application for a contributory parent visa – visa refused on basis that Visa Applicant is not of good character – Visa Applicant arrived in Australia with her two small children in 1987 on a tourist visa – Visa Applicant’s husband was already residing and working illegally in Australia – Visa Applicant’s husband was deported and Visa Applicant was required to depart Australia – Visa Applicant did not depart – Visa Applicant made several visa applications including a protection visa application – Visa Applicant made false representations in visa applications - Visa Applicant joined three class actions against the Minister for Immigration pursuant to refugee status although the decision to refuse her protection visa had been affirmed by the RRT – Visa Applicant worked illegally in Australia – Visa Applicant made a supervised departure from Australia in 2003 – decision under review is affirmed.
Selvadurai and Minister for Immigration and Ethnic Affairs (1994) ALD 347
Aslam v Minister for Immigration and Multicultural Affairs [2000] FCA 548
Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575
Re Susilo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 495
Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634
Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Re Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897
Re Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1308
Migration Act – sections 234, 235 and 501
REASONS FOR DECISION
7 February 2005 Deputy President J Block Part A: Introduction and General
1. The decision which is under review is the decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) refusing an application for a Contributory Parent (UT-173) visa applied for by Hwa Sook Yoo (“the Visa Applicant”); that application was sponsored by her son, In Soo Cho (“the Applicant”).
2. This refusal of a Contributory Parent visa dated 27 July 2004 (Tp6 – Tp19) was made pursuant to section 501 of the Migration Act 1958 (“the Act”) on the basis that the Visa Applicant does not pass the character test.
3. The Applicant was represented by Mr Yeon Cheol Jeong (a migration agent) of Burwood Immigration Service and the Respondent was represented by Ms Stella Koya of Phillips Fox, solicitors.
4. The Tribunal had before it the T-Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 together with one exhibit marked A1 and being a character reference concerning the Visa Applicant by the Reverend Dr Paul Woosung Chung of the Sydney Full Gospel Church at Greenacre. He is referred to in brief as the “Reverend”.
5. The Respondent’s statement of facts and contentions dated 15 November 2004 (“the Respondent’s statement”) was especially useful in this matter not only because of the detail contained in it but also because of the fact that the Applicant did not file a number of relevant documents which are generally or conventionally required to be filed pursuant to the Administrative Appeals Tribunal’s General Practice Direction (1998). There was no proper statement of facts and contentions furnished by the Applicant; and there were no witness statements provided in respect of either the Visa Applicant or the Applicant; although it might be possible to say that Tp5 (undated and prepared some considerable time ago) might be treated, at least to an extent, as a witness statement for the Applicant. Ms Koya agreed to waive compliance with the Tribunal’s practice direction in this regard. Clauses 2 to 27 inclusive of the Respondent’s statement under the heading of “Facts” are included in these reasons as follows:
“[2] The Visa Applicant is the mother of the Review Applicant – he is also her sponsor. The review Applicant was granted Australian permanent residency on 8 October 2001 on the basis of his close ties to Australia.
[3] On 8 December 1987, the Visa Applicant entered Australia accompanied by her children Mr In Soo Cho and Ms Yoon Joo Cho.
[4] The Entry Permit granted to the Visa Applicant permitted her to stay in Australia until 20 March 1988.
[5] The Visa Applicant's husband, Mr Han Seung Cho, who entered Australia on 11 June 1987, was already unlawfully residing and working in Australia at the time of her arrival.
[6] When the Visa Applicant’s Entry Permit expired on 20 March 1988, she remained in Australia as a prohibited non-citizen.
[7] On 1 November 1989, the Visa Applicant’s husband was located by compliance officers and detained under section 38(1) of the Act. The Visa Applicant was not detained and became subject to reporting conditions in order to enable her and her children to make acceptable arrangements to depart Australia. The Visa Applicant failed to abide by the reporting conditions and absconded into the community with her children.
[8] The Visa Applicant’s husband Mr Han Seung Cho made a supervised departure on 8 November 1989.
[9] On 9 February 1990, the Visa Applicant’s husband entered Australia on a visitor visa under the name of Han Sung Jo.
[10] On 23 February 1990 he lodged an application for an Extended Eligibility Temporary Entry Permit, listing the Visa Applicant and her children as dependants. The application was refused on 3 August 1990 but he was not notified of the decision until 24 March 1994.
[11] On 17 December 1993, the Visa Applicant applied for an Illegal (subclass 812) permanent visa on compassionate grounds.
[12] In this application, the Visa Applicant stated that she was separated from her husband since November 1989.
[13] In a statutory declaration dated 6 November 1997, she stated that her husband, from whom she was separated, resided in Korea and that she regarded her marriage relationship as finished. She also stated that her children speak to him from time to time over the telephone.
[14] However, her husband was not in Korea but was illegally residing in Australia at the time.
[15] On 25 February 1999, the Visa Applicant’s application for an Illegal visa was refused.
[16] On 22 July 1999, the Visa Applicant applied for a Protection Visa. She claimed that she feared persecution on the basis of the North Korean origins of her husband's father. [Her husband had lodged an application for a protection visa on 19 August 1996 – in that application he did not mention this aspect.]
[17] On 10 September 1999, the delegate refused the Visa Applicant’s application for a protection visa.
[18] On 9 May 2000, the RRT affirmed the delegate's decision.
[19] The Visa Applicant then took part in the Kagi, Ruhunuhewa and Lie Class Actions against the Minister.
[20] On 19 July 1998, DIMIA warned the Visa Applicant that it was aware that she was working illegally contrary to her Bridging E (subclass 050) visa and cautioned her to cease working.
[21] On 16 July 2003, the Visa Applicant made a supervised departure from Australia as a holder of a Bridging E (subclass 050) visa.
[22] On 24 July 2003, the Visa Applicant lodged an application for a Contributory Parent (UT 173) visa.
[23] On 5 December 2003, DIMIA wrote to the Visa Applicant advising her of its intention to consider refusing her application for the Contributory Parent visa on character grounds, highlighting subparagraph 501(6)(c)(ii) of the Act as the relevant section.
[24] On 5 January 2004, the Visa Applicant responded through her advisers Burwood Immigration Service admitting to all the facts in the delegate's decision except one; ie, that there was a debt of $1,000 to the Commonwealth. The Visa Applicant claimed that the debt was paid in 1999.
[25] On 27 July 2004 DIMIA wrote to the Visa Applicant’s advisers informing them that the Visa Applicant’s application for a Contributory Parent visa had been refused under subsection 501(1) of the Act after finding that she did not pass the character test outlined in subparagraph 501(6)(c)(ii) of the Act.
[26] On 18 August 2004, the Review Applicant lodged an application for review of the delegate’s decision.
[27] Mr Han Seung Cho, using the name Han Sung Jo, made a monitored departure from Australia in September 2004.”
6. This is not a case in which it is necessary for me to deal in great detail with the evidence. Evidence was given by the Visa Applicant (by conference telephone link to Korea and with the aid of an interpreter in the Korean language), the Applicant and the Reverend. Put in very broad terms, it became ever-increasingly clear, and in fact there is little dispute that this is so, that the Visa Applicant came to Australia with her two small children in December 1987 in order to remain in Australia. At the time of her arrival the Applicant was then aged about four years while his sister was then aged about 18 months.
7. The Visa Applicant’s husband Han Seung Cho (referred to as “the husband”) entered Australia in June 1987 before the Visa Applicant’s arrival. The husband was already illegally in Australia and working illegally when the Visa Applicant and her children arrived.
8. The husband was located and detained by immigration authorities in November 1989; he made a supervised departure from Australia on 8 November 1989. Once back in Korea, the husband obtained false documents in another name, Han Sung Jo, and under this false name returned to Australia on 9 February 1990. The gap in time between his monitored departure and his illegal return to Australia was approximately three months. The Visa Applicant was not detained at the time of her husband’s detection despite the fact that she too was illegally in Australia; however, she was required to make arrangements to leave Australia and pending departure was obliged to comply with reporting conditions. She did not comply with the reporting conditions and disappeared with her children into the community.
9. In the years which followed, the Visa Applicant attempted on a number of occasions to obtain a visa in order to stay in Australia. Those applications included:
(a) an application for an Illegal (subclass 812) permanent visa in order to care for Ms Kyung Soon Hwang (see Tp76 – Tp84).
(b) an application for a protection visa made some 12 years after her arrival and an application for the review of the refusal of that protection visa by the Refugee Review Tribunal (“RRT”). That refusal was affirmed by the RRT on 20 April 2000 (see Tp85 – Tp93).
The Visa Applicant also joined three class actions against the Respondent, and being the Kagi, Lie and Ruhunuhewa actions, and in respect of which Mr Adrian Joel (“Joel”) was the solicitor.
10. Firstly, and in relation to the Hwang carer application, statutory declarations by Ms Kyung Soon Hwang dated 30 October 1997 (Tp78 – Tp81) and the Visa Applicant dated 6 November 1997 (Tp82 – Tp84) are impossible to reconcile with the Visa Applicant’s evidence before the Tribunal. The Visa Applicant said in her oral evidence that she did not pay any money to Mrs Hwang for her sponsorship of that application; she said that Mrs Hwang demanded money but she did not pay her any money because she could not do so. That statement is entirely different from the fourth clause of Tp82 (a part of a statutory declaration by the Visa Applicant) which reads as follows:
“Currently I live at 23/101 Pacific Parade, Dee Why with Ms Hwang and my two children. I work as a domestic cleaner and have been able to support myself and my children. I also provide financial assistance to Ms Hwang as the need arises; because Mrs Hwang is a pensioner and sometimes does not have enough money. Therefore, I have given her money for special items, such as paying for her tickets to travel to Korea in order to see her mother there.”
It is also very different from the second and third paragraphs of Tp80 (a part of a statutory declaration by Ms Hwang) and which reads as follows:
“. . . Ms Cho has become has become like a daughter to me. She takes care of me; she helps me with my appointments and takes me shopping or to the doctor. She also helps me financially by giving me money when I need it. For example, she has helped pay for my holidays in Korea, where my mother still lives (she is now 86 years old) over the past few years by purchasing my airline ticket. Ms Cho gives me small amounts of money whenever I need to make a small purchase.
I am an aged pensioner, receiving $403.00 per fortnight. I have no money of my own. If it were not for Ms Cho I would be struggling from pension cheque to pension cheque. I am not wholly financially dependent on Ms Cho as I do receive the pension. However, Ms Cho makes a difference in terms of helping me financially when the need arises.”
11. Secondly, the protection visa application was made on grounds which were false. That decision was, as I have said taken on review to the RRT which affirmed the refusal decision on the basis that the Visa Applicant had not established that she was a refugee. A relevant extract from the decision of the RRT set out at Tp91 reads as follows:
“The applicant indicated that she would like her children to visit Korea, and that she herself would return there if she had the protection of Australian residence or citizenship. At one point she indicated that she would now prefer to visit other countries and that she has stayed too long (sic) Australia. The Tribunal also places some weight on the fact that the applicant did not apply for refugee status until she had been in Australia for over twelve years, and then only because an application to the Department on other grounds was unsuccessful. In addition, on her own evidence the applicant obtained a passport from the South Korean authorities in Sydney in 1994, and renewed it in 1999. In the Tribunal’s view these facts, taken together, do not suggest that the applicant has a general fear of persecution in Korea.
However if I am wrong in this regard then I am not satisfied that the applicant’s fear of persecution is well-founded. The applicant’s claims regarding both past harms and future harm were fairly general. While the Tribunal accepts that relations between North and South Korea have often been tense over the years, the applicant said that after she married her husband in 1983 and until she left Korea in 1987 she did not have any particular problems with the authorities. She later said she felt oppressed and followed, and that there were problems finding work. However while I accept the applicant may have been unsuccessful on three occasions in obtaining public sector jobs, I do not accept that such difficulties are so serious as to amount to persecution . . . While the applicant said she felt ‘followed’ in Korea, she gave no specific evidence in this regard and the Tribunal is not satisfied on the evidence before it that the applicant was ever followed by the authorities because of her North Korean connections. The applicant was not questioned or held by the authorities when she was married to her husband and lived with his family, and the Tribunal therefore finds it highly unlikely that she would be questioned on her return when she has been separated from her husband for ten years.”
As stated by the RRT in its reasons, the fact that the protection visa application was lodged 12 years after the Visa Applicant’s arrival in Australia indicates that it was not a genuine application. In Selvadurai and Minister for Immigration and Ethnic Affairs (1994) ALD 347 at 11 Heerey J stated that delay in applying for a protection visa was, in his opinion “a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution”. In Selvadurai (supra) an adverse inference was drawn from the applicant’s delay in lodging a protection visa 20 months after his arrival in Australia and shortly before the expiration of his student temporary entry permit. See also Aslam v Minister for Immigration and Multicultural Affairs [2000] FCA 548. In this case the Visa Applicant lodged a protection visa application after the expiry of 12 years.
12. The Visa Applicant was never a refugee and knew that she was never a refugee. She nevertheless used that (alleged) status as a basis for joining the three class actions to which I have referred previously.
13. Eventually and on 16 July 2003 the Visa Applicant made a supervised departure from Australia. On 24 July 2003 (eight days later) the Visa Applicant applied for a Contributory Parent visa, the refusal of which gave rise to this application. During a large part of the period of her stay in Australia (1987 – 2003) the Visa Applicant worked illegally; so for that matter did the husband who under his false name made a monitored departure from Australia, for the second time in September 2004. The Visa Applicant made a considerable number of false statements, many of which are referred to under the head of “Facts” in the Respondent’s statement, part of which is reproduced in clause 4 of this decision.
14. In the evidence before me over two days the relationship between the Visa Applicant and the husband was the production of a large quantity of contradictory evidence. The Applicant’s evidence was that when in Australia and throughout that period, his parents lived together; he said that they argued on occasions. The Visa Applicant’s evidence was that although for most, but not all of that period, they lived in the same house they were separated in “psychological terms”. She spoke of arguments over visas and money. Her evidence was also that although when she returned to Korea she did not at first live with her husband they are now living together. It is relevant in this context that it was not possible for them to be together in Korea on her return to Korea since his second supervised return to Korea took place in point of time about a year later.
15. The evidence reveals in altogether stark and clear terms that the Applicant and her family came to Australia in order to stay in Australia. They considered that Australia was a better place than Korea for the purposes of bringing up children. The fact that they were not entitled to remain in Australia (illegally) does not appear to have weighed with them in any manner whatever. In the many years which followed, they were prepared to take whatever steps and make whatever false statements were required in order to procure their continued presence in Australia. The behaviour of the husband is particularly significant. Having been forced to leave Australia in November 1989 he returned to Australia under another name three months later.
Part B: The Evidence of the Applicant
16. Tp5 which was treated as the Applicant’s witness statement and reads as follows:
“My families came to Australia on 1987 and lived together since then. I was told my father had been caught by Compliance officers of DIMIA on 9 Nov 1989, subsequently had been deported to Korea.
However, my father came back to Australia on Dec 1989 with his new passport, I did not know at that time, though.
I think my parents have been doing their best to live here in Australia and support my sister and me. They seem to have done every thing they could do to live in Australia except serious criminal behaviour like robbing, stealing, violence, etc.
Even though they made some contradictory statements over a several visa application, they did them only to live in Australia and to give great opportunities to us, their children.
Due to my parents’ effort, I could become an Australian citizen and my sister, Yoon Joo Cho has applied for her permanent residency and waiting for the decision currently.
Now, my mother, Hwa Sook Yoo is residing in S. Korea and I could not contact with my father even though he is in Australia.
I and my sister could live by helping from my parent’s friends, church, friends, Korean relatives, etc. Recently, I could get Austudy from Centrelink.
I am a University of NSW student, major in medical science now and I want to live with my parents. If my parents could live together as used to before, nothing couldn’t be happier to me.
In terms of likelihood that the conduct may be conducted, they will never repeat those behaviour again because they don’t need to repeat it if they become permanent resident.
I believe that the Delegate of the Minister could have exercised his/her discretion power over my parent’s case.”
17. The evidence of the Applicant was not controversial. He agreed that the statement which is set out in Tp5 required correction if it is to be treated as his witness statement, since his father (the husband) is no longer in Australia.
18. The Applicant gave evidence at some length as to the various places in which the family has resided, mostly in Sydney except for one period in Canberra. He said, as I have noted, that his parents always lived together.
19. The Applicant obtained a place at Sydney Boys High (a selective high school) where he obtained a good Higher School Certificate mark. He is currently a medical science student at the University of New South Wales. He lives in Lidcombe, Sydney with his sister, and also currently, his grandmother who is in Australia on a temporary visit from Korea. He receives Centrelink benefits of $440 per fortnight which includes rent assistance.
20. The Applicant first became aware of the fact that his family were in Australia illegally when he was about 18. He was able to obtain a visa to remain in Australia based on his close ties with Australia and is now an Australian citizen. His sister (who is some two years younger) has applied for a similar visa and will when it is granted, read international studies and biotechnology (a combined course) at the University of Technology, Sydney.
21. In general terms the evidence of the Applicant was often understandably vague. He came to Australia when he was four years old and so that much of what occurred from 1987 onwards is not known to him. He said that he knew that his mother worked as a cleaner together with his father. He has sponsored this application only in respect of his mother, the Visa Applicant, having received advice that an application for his father would be particularly difficult because of the husband’s return to Australia “in an illegal name”.
22. In cross-examination the Applicant said that his parents lived together all of the time except when his father was not in Australia. The Applicant said that his mother, the Visa Applicant left Australia of her own free will. That is hardly correct; she left when she was obliged to do so after many years in Australia and after many baseless applications.
23. The Applicant knew nothing of the protection visa application. He agreed that if the decision before this Tribunal was affirmed he could visit his mother in Korea. He was adamant about the fact that he would not consider going back to Korea. He said that he needed his mother, the Visa Applicant, in Australia to care for his sister. He agreed though that his sister is now over 18 and waiting for the residence permit which will allow her to attend university. The Applicant is a clever and able young man who understandably enough wants to be with his parents, but he wants to be with them in Australia.
Part C: The Evidence of the Reverend
24. Exhibit A1 which is a character reference dated 30 November 2004 concerning the Visa Applicant by the Reverend and it reads as follows:
“My name is Rev. Woo Sung Chung, Senior Pastor of Sydney Full Gospel Church at Greenacre.
Ms Hwa Sook Yoo came to my church in 1987 for the first time.
Since then she has been a sincere and truthful devotee to God. Even though there have been visa problems, she has shown her good character by participating a lot of voluntary works in the church.
For more than 10 years, she has been a good devotee to my church. She is diligent and a woman of good character.
As far as her personal character is concerned, there is no doubt that she is a very good person who deserve to live in Australia with her children happily.
Whenever she felt hard to live due to her visa problem, she prayed to God all the time.
She confessed her wrong doing with her visa application to me because I am her pastor and felt guilty with that; however, she wanted to live here in Australia with her family and she tried hard to live here.
I fully understand that there must be some contradictory statements at her visa application due to her eagerness to live here; however, I am looking forward to your generous consideration on her case because she will never do her wrong doing again if she come to Australia. She does not need to do it again.”
25. Exhibit A1 functioned as the Reverend’s witness statement. The Reverend has been in Australia at Sydney Full Gospel Church for 26 years. (His English is having regard to that period, rather weak, and the interpreter was sworn in to assist him in case of need).
26. The Reverend’s evidence was that the Visa Applicant was a regular attendee of his church. In addition, because of the church’s size and geographical spread the Visa Applicant acted as the leader of a small cell of about 10-12 parishioners. He said that she helped other members of the church although he did not specify what form that help took. (The Visa Applicant’s evidence made no reference to this cell or of help to others; she by contrast gave evidence of having received help from the church in the form of accommodation and in the provision of other benefits but not sounding in money).
27. It became clear that the Reverend knew at a very early time that the family was in Australia illegally. He said “if people come without a proper visa they become illegal. I knew their status and I counselled them”.
It was also clear that the Minister does not view the Visa Applicant’s conduct as serious. He said “she made some misrepresentations. She didn’t put correct wording. She made false statements, she has thoroughly repented about what she did wrong and she won’t do wrong any more”. The Reverend’s evidence indicated that it is his view that the Visa Applicant and the husband acted as they did for the benefit of their family and that the continued separation of the children from their parents is as he put it “miserable”. The Reverend’s description of her conduct indicates that he does not even begin to appreciate the significance of what she did in relation to sections 234 and 235 of the Act and also clause 2.6 of Direction 21 referred to more fully later in these reasons.
The Reverend thought that the Visa Applicant should be allowed to come back to Australia to care for her children. He said that Korean mothers are particularly devoted to their children and more so than Australian mothers. It will be noted that the Reverend spoke of repentance by the Visa Applicant. The basis upon which he could make such a statement is entirely unclear. She was not at all repentant; as she sees it she (and her husband) did what was necessary in order to procure a better life for her children in Australia. She regrets only one thing and that is that she was eventually forced to leave Australia. The Reverend’s evidence deserves little credit.
Part C: The Evidence of the Visa Applicant
28. It may be noted at the outset that the Visa Applicant’s evidence taken as a whole, was an odd mixture of truthful evidence (and sometimes disarmingly so), and also untruthful evidence.
29. She accepted that she had made many false and misleading statements. She said (and repeated) that she did so because she wanted to reside in Australia with her children.
30. I do not think it necessary for me to go into great detail as to her evidence (which was often extremely inconsistent) as to her relationship with her husband. Suffice it to say that I do not believe that they are estranged and separated or that they ever have been. Statements to this effect (for example in the statutory declaration dated 6 November 1997 (Tp82)) were inserted because it was thought that they would advance her attempts to remain in Australia.
31. The Visa Applicant said in categoric terms that “I acknowledge that I did provide misleading information and I made false statements to enable me to stay in Australia with my children. Life in Australia is overall much better”.
32. The Visa Applicant’s evidence as to money matters was, as is so often the case in matters of this nature, impossible to rationalise. The Visa Applicant had said that when the family came to Australia she, the Visa Applicant had some money (but not a large amount) with her. She said that she had sold real property in Korea and had $50 000 to bring with her. A little later she said that she sold the real property, after coming to Australia, having leased it before coming to Australia.
33. As to earnings the Visa Applicant said that she did some cleaning for the church in part consideration for accommodation. She and the husband worked for a cleaning company for a short while but the pay was too low. Thereafter they set up as a partnership doing house cleaning and from which they derived (but on an irregular basis) approximately $500 per week. When cross-examined about tax matters the Visa Applicant insisted that she had a tax file number and that tax was paid through returns prepared by Mr Choon Kwon Kim, their accountant. But when it was put to her that a couple earning $500 per week between them would not have had to pay any tax, she suddenly changed tack and said that their work as house-cleaners resulted in referrals as a result of which their earnings increased. In the absence of any concrete and credible evidence at all as to returns or payments of tax, I do not believe that any tax was ever paid.
34. In the course of cross-examination the Visa Applicant agreed that she was apprehended in November 1989 and that although then subjected to reporting conditions as a condition of release, and on the condition that she leave Australia, she ignored them and disappeared into the community. She also knew that her husband had returned to Australia under a false name.
35. The carer application involving Ms Hwang was made through Joel. In that application she made statements as to her husband which were not true. She said that at that time she was separated from him. She was then referred to her statutory declaration dated 6 December 1997 in which she said that her husband was back in Korea. She said that this was done because he had re-entered Australia under a false name and she did not want to say anything which might be adverse to him. When it was put to her that she could have said nothing at all in this connection she answered merely that “I had responsibilities to my children”.
36. It may be noted that the Visa Applicant often answered a question with an answer which bore little or no relation to the question. When she was asked whether in making a protection visa application she believed that she was a refugee her answer was that “I made an application to stay to care for my children”. The Visa Applicant said that the refugee application was made on advice from Joel (as was the carer application) and she joined the class actions on his advice. She said that she paid Joel about $3000.
37. The Visa Applicant was referred to a statutory declaration by the husband dated 22 December 2003 (Tp57) in which he said in the third paragraph that he separated from the Visa Applicant because of her constant infidelity. She was also referred to her claim in her protection visa application that she and the husband had been separated for ten years (see clause 11 of this decision). She answered that she made a false statement because her husband had re-entered Australia under a false name. As to the alleged infidelities she answered merely that they had “fights”.
38. The Visa Applicant was asked whether if the decision was set aside she would return to Australia without the husband, and in respect of whom there has been no similar application. Her answer was that she would return to Australia because her responsibilities to her children are greater.
39. Into the “conflicting” class of evidence must be put all of the Visa Applicant’s evidence as regards Ms Hwang which altered from one moment to the next.
Part D: The Character Test and Direction under section 499(2) visa refusal and cancellation under section 501 of the Migration Act 1958 (“Direction 21”)
40. Mr Jeong conceded that the Visa Applicant does not pass the character test. Her conduct over many years involving numerous breaches of section 234 and 235 of the Act ensures that this must be so. It is therefore necessary to consider Part 2 of Direction 21. References to numbered clauses in this Part D should be construed as references to numbered clauses in Direction 21.
41. The primary considerations are contained in clause 2.3 and read as follows:
“In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or
children and the person under consideration, the best interests of the child or children.”
42. Clause 2.3 must be read in conjunction 2.5 which reads:
“The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk or recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
43. Clause 2.6 provides examples of offences which the Government considers to be very serious. Clause 2.6 (c) includes:
“serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”
44. There are no children whose interests are primary pursuant to clause 2.3(c); both the Applicant and his sister are over 18 years of age.
45. The Visa Applicant’s conduct was very serious within the context of clause 2.5(a) of the Direction. From her arrival in Australia she embarked upon a course of fraudulent conduct designed to achieve one end and that was residence in Australia. In order to do so she was prepared to make as many false statements and applications as were necessary (and there were many); she stayed illegally and she worked illegally. She also made several false representations concerning the status of her marriage and her relationship with her husband. That she knew of her husband’s return under a false name cannot be doubted for a moment; especially given the Applicant’s evidence that his parents had always lived together. Moreover when she was detained and released upon reporting conditions and on condition that she depart Australia, she simply ignored all of them and disappeared into the community. Her conduct clearly falls within clause 2.6(c).
It must be said that to some extent her (and her husband’s) conduct has been successful. The Applicant is now a permanent resident of Australia and an Australian citizen. He is a student at a good university and he receives generous social security benefits to enable him to study. If he could obtain a permanent residency and citizenship in Australia on the basis of his close ties to the Australian community there is no reason to doubt that his sister will also be able to do so; and with aid from social security, she too will be able to study in Australia.
Curiously enough and throughout this case, I had the very clear impression that all of the witnesses believed that the conduct in question was justified and necessary in the circumstances. Both the Applicant and the Reverend clearly believed that this being so the Visa Applicant should be allowed to return to Australia. The Reverend said, as I have indicated, that Korean mothers are particularly devoted to their children. (The Reverend’s behaviour while the Visa Applicant was giving evidence under cross-examination was distinctly odd; he suddenly interrupted from the back of the room in order to make a speech.) This belief as to an entitlement to live in Australia and to enjoy the “good life” (and see Re Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1308) is not at all uncommon.
46. I do not think, having regard to clause 2.5 (a) that the Visa Applicant is likely to be a danger to the Australian community. While I regard the risk of recidivism (and see clause 2.5(b)) as not being high, it cannot be discounted entirely having regard to her illegal conduct over so many years. Her total disregard of Australian law is demonstrated in the starkest possible terms by what happened when her husband was detained in November 1989. She was allowed to remain to enable her to care for her children but subject to conditions which, as I have indicated, she simply ignored. The Applicant apparently made an application for a visa on behalf of his mother, the Visa Applicant, only, apparently because he felt or was advised that his father’s conduct was so bad that any such application for his father would be purposeless. While his mother’s conduct was not quite as bad, it cannot be said that there was any material difference. In Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, Deputy President Wright QC noted at 33, that:
“In considering whether or not there is likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community”.
I refer also to Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, where Deputy President McMahon highlighted at paragraph 36 that:
“...The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld”.
Moreover, the grant of a visa to the Visa Applicant on the basis that she would not have any reason to continue defrauding the Australian authorities, cannot be justified. I refer in this context to clause 57 of the decision of Deputy President Chappell in Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897 where he quoted from the decision of Deputy President McMahon in Phuoc Tuong Tran (AAT 2357 30 October 1997); clause 57 of that decision in Kauffman reads as follows:
“The legitimate interests of the Australian community in the maintenance of an ordered migration system in this case outweigh the competing factors which require consideration. Undue harm would result to that program if Mr Kaufman were to be; granted a visa, since it would be tantamount to rewarding him for his deliberate and sustained fraudulent conduct. As Deputy President McMahon stated in Phuoc Tuong Tran (AAT 12357, 30 October 1997):
‘Such a reward would be inimical to confidence in Australia’s legitimate immigration program. It is in the national interest to preserve faith in the evenness, fairness and good management of a migration program of which many thousands seek to avail themselves. It is important that the Australian government is able to say to other applicants that they will not be permitted to profit from their lack of candour (at 17).’”
And in Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575 at 26 Deputy President McMahon stated that:
“The community’s expectation is that no person of any nationality should be rewarded for attempting falsely to obtain immigration benefits to which that person was not entitled”.
Further in respect of deterrence I refer to Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935; at paragraph 47, Deputy President Purvis QC stated that:
“These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.”
While it is doubtful whether decisions of this Tribunal are known in Korea, they probably do become known in the Korean community. To reward conduct of this nature with a visa would send entirely the wrong message.
47. Interestingly, this case is very reminiscent of Re Susilo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 495, which was heard by me, but which was not, despite the fact that it is directly in point, cited by either party. (In fact neither side referred to any case law). Susilo (supra) was also an application for the review of the refusal of a visa on character grounds. The visa applicant in that case came to Australia from Indonesia on a tourist visa in 1986; her husband, child and parents-in-law followed her to Australia shortly thereafter. The Visa Applicant overstayed her visa and worked illegally (for some 18 years) as did her husband. The Visa Applicant’s husband who had come to Australia previously had previously been deported from Australia in 1984 but then returned in 1987 after changing his name. The Visa Applicant gave birth to a second child (a son) who, at the time of the hearing was 14 years old. The son obtained Australian citizenship and then sponsored the Visa Applicant in an application for a visa. The Tribunal affirmed the decision not to grant a visa to the Visa Applicant. I refer to clause 144 of my decision in that case where I stated:
“In relation to the expectations of the Australian community, I accept that there may be a minority sympathetic view that the Susilo parents should after all this time be allowed to stay here. That view would necessarily be based on the proposition (at least in part) that the law can be overlooked if only one can evade the authorities for long enough. Expressed thus it is easy to see how fallacious it is. In my view the majority of the Australian community knowing the facts and in particular the manner in which Benny [the father] returned to this country after being deported it would expect that the visa be refused.”
See Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634 in which Brennan J said that consistency in decision making is desirable.
48. It follows of course that I consider having regard to clause 2.12 of Direction 21, that the Australian community or at least most of it would expect the refusal of a visa.
49. As to clause 2.17, I accept that to affirm the decision will cause hardship to the Applicant and also his sister, although she did not give evidence. But they will have a choice. With good qualifications they will be able to rejoin their parents in Korea and, in practical terms, without sacrificing (on a permanent basis) their Australian citizenship.
50. It seems clear that the Visa Applicant and the husband behaved as they did in order to procure a better life for their children (and presumably themselves) in Australia. However, this desire required them to breach Australian law on an almost continual basis. She cannot be rewarded for doing so, merely because the refusal of a visa will cause some hardship to the Applicant and his sister.
51. It is with some regret that I note that Mr Jeong found it extremely difficult to handle this case. Firstly, his English is weak and at times very hard to comprehend. Secondly, he has virtually no knowledge of procedures in this Tribunal. Thirdly, he is unaware of how to present evidence. Fourthly, he appears to be largely unfamiliar with the Migration Act 1958, and in particular Direction 21 and sections 234 and 235 of the Act. If he is to continue representing applicants before this Tribunal (and it must be remembered that this was his first case before this Tribunal but not, so he said, another Tribunal) he must improve his English very considerably and he must learn both the law and the procedure. It must be noted that the matter was of such a nature that his inexperience did not, in my view, make any difference to the result. However these reasons should be sent to the Migration Agent’s Regulatory Authority for its consideration.
52. This is not a case in which the discretion can be exercised in favour of the Visa Applicant and the decision under review must be affirmed.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: Melinda Di Condio
AssociateDate/s of Hearing 20 and 21 January 2005
Date of Decision 7 February 2005
Representative for the Applicant Mr Yeon Cheol Jeong
Solicitor for the Respondent Ms Stella Koya, Phillips Fox, solicitors
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