Kim and Minister for Home Affairs (Migration)
[2019] AATA 4895
•23 October 2019
Kim and Minister for Home Affairs (Migration) [2019] AATA 4895 (23 October 2019)
Division:GENERAL DIVISION
File Number: 2019/4658
Re:Jae Seung Kim
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:23 October 2019
Place:Sydney
The reviewable decision made 30 July 2019, being the decision of a delegate of the Minister not to revoke the cancellation of Mr Kim’s Class BB Subclass 155 (Five Year Resident Return) visa, is affirmed.
............................[sgd]............................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – mandatory cancellation of visa – failure to pass character test – substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – Direction No. 79 – primary considerations – protection of Australian community from criminal or other serious conduct – nature and seriousness of conduct – risk to Australian community – best interests of minor children – expectations of Australian community – other considerations – strength, nature and duration of ties to Australia – impediments if removed from Australia – risk to Australian community unacceptable – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
DKXY v Minister for Home Affairs [2019] FCA 495
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Deputy President J W Constance
23 October 2019
A: Introduction [1] B: Background [8] C: Relevant Legislation [26] D: Direction No. 79 [31] E: The Issue for Determination [40] F: Reasoning [43] F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct [43] F2: Primary Consideration 2: Best interests of minor children in Australia affected by the decision [95] F3: Primary Consideration 3: Expectations of the Australian community [102] F4: Other considerations [109] G: The Balancing Exercise [123] H: Conclusion
[130] A: INTRODUCTION
Mr Kim is a 45-year-old citizen of South Korea.
He first entered Australia in July 1997 as the holder of a Class TZ Subclass 417 (Working Holiday) visa. In 2001, he was granted a Class AS Subclass 801 Partner (Permanent) visa. He last entered Australia on a Class BB Subclass 155 (Five Year Resident Return) visa, which he held until it was cancelled on 23 October 2018.
On 31 October 2017, Mr Kim was sentenced to imprisonment for twelve months, suspended upon entering a good behaviour bond, for the offences of assault occasioning actual bodily harm (DV) (called up from 23 October 2017) and contravene prohibition/restriction in AVO (Domestic).[1] These offences were called up on 28 September 2018, and Mr Kim was resentenced to twelve months’ imprisonment. By reason of the 31 October 2017 sentence, and his subsequent imprisonment upon being resentenced on 28 September 2018, on 23 October 2018 Mr Kim’s visa was cancelled in accordance with subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).[2] This decision is referred to in the Act as “the original decision”.
[1] Exhibit R1 at 36, 38.
[2] Exhibit R1 at 71.
On 30 July 2019, a delegate of the Minister decided not to revoke the original decision.[3] The decision of 30 July 2019, referred to as the “reviewable decision”, is the subject of this application for review.
[3] Exhibit R1 at 17.
The reviewable decision was made on the basis that the delegate was satisfied that Mr Kim did not pass the “character test” set out in the Act, and that there was not another reason why the original decision should be revoked.
At the time of the hearing of this application, Mr Kim was being held in immigration detention.
For the reasons which follow, the reviewable decision will be affirmed.
B: BACKGROUND
Unless otherwise stated, the findings of fact in these reasons are based on the evidence of Mr Kim. He provided statutory declarations made 22 March 2018[4] and 6 September 2019.[5] He gave evidence at the hearing with the assistance of an interpreter.
[4] Exhibit R1 at 106.
[5] Exhibit A1.
Mr Kim was born in South Korea and completed his schooling there. He studied at a university for three years before joining the South Korean Army in which he served for just over two years. Upon discharge from the Army, he decided not to return to complete his tertiary degree and instead came to Australia as a student. He has lived in Australia for the past 22 years and considers Australia to be his home.
In 1999, Mr Kim married. There is one child of this marriage, a daughter who is now 17 years old.
In 2005, when his daughter was three years old, Mr Kim and his wife separated. From that time, Mr Kim became the sole carer of his daughter. He and his wife divorced in 2009.
Mr Kim commenced a commercial cleaning business in approximately 2003. Initially the business employed three or four people; it grew to employing 25 people. Mr Kim was engaged full-time in managing this business until it failed in 2013.
Mr Kim remarried in 2009. He and his wife separated the following year.
Mr Kim married again in April 2017. From that time, Mr Kim’s immediate family consisted of Mrs Kim, Ms C. Kim (his daughter) and Ms H. Kim (Mrs Kim’s daughter and Mr Kim’s stepdaughter).
On 9 August 2017, Mr Kim assaulted Ms Kim, his stepdaughter, occasioning her actual bodily harm. An Apprehended Domestic Violence Order was issued by the Local Court of New South Wales to protect his stepdaughter.
On 2 October 2017, Mr Kim was charged with contravening the Order and was released on bail. On 26 October 2017, he was taken into custody by reason of his having again breached the Order. Mr Kim’s bail was formally revoked the following day.
On 31 October 2017, Mr Kim was convicted of again contravening the Order. He was sentenced to imprisonment for a period of twelve months. This sentence was suspended but Mr Kim remained on remand in custody for the previous contravention.
On 2 February 2018, Mr Kim was convicted for the first contravention of the Order. He was sentenced to four months’ imprisonment, commencing on 27 October 2017 and concluding on 26 February 2018.
On 19 February 2018, a delegate of the Minister cancelled Mr Kim’s visa on the basis of the sentence of 12 months’ imprisonment which had been imposed on 31 October 2017.
When he was released from prison on 26 February 2018, Mr Kim was immediately taken into immigration detention.
Following representations made by Mr Kim, on 23 July 2018 a delegate of the Minister revoked the cancellation decision. Mr Kim was released from detention.
Shortly after his release, Mr Kim again breached the Order. On 28 September 2018, his previous convictions for contravening the Order and assaulting his stepdaughter were called up and he was imprisoned for 12 months with a non-parole period of 4 months.
On 23 October 2018, a delegate of the Minister again cancelled Mr Kim’s visa on the basis of the sentence of imprisonment imposed on 28 September 2018. When Mr Kim was released from prison on 19 January 2019, he was immediately taken into immigration detention where he has remained since.
Mr Kim’s criminal record
Mr Kim’s relevant criminal record is as follows:
Court date Offence Penalty/Sentence 22/03/2002
(Burwood Local Court)
Assault occasioning actual bodily harm Fine: $750 24/10/2005
(Burwood Local Court)
Drive with middle range PCA Fine: $800 costs – court: $65 disqualification 9 months commencing 1/10/2005 25/01/2006
(Burwood Local Court)
Drive while disqualified from holding a licence Fine: $750 costs – court: $65 disqualification 2 years commencing 30/06/2006 3/04/2006
(Burwood Local Court)
Drive while disqualified from holding a licence Fine: $1,000 costs - court: $65 disqualification: 2 years commencing 30/06/2008 bond s 9: 2 years supv NSW prob service to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the probation office within 7 days 7/11/2007
(Burwood Local Court)
Drive while disqualified from holding a licence Imprisonment: 6 months suspended on enter bond s 12 disqualification: 2 years commencing 30/06/2010 cumulative disqualification (habitual offender) 6/08/2010
(Burwood Local Court)
Common assault (DV)
Bond s 9: 2 years to comply with the terms of the apprehended violence order 2/03/2011
(Balmain Local Court)
Common assault (DV) (Call up) community service order: 100 hours Drive while disqualified from holding a licence Community service order: 150 hours costs – court: $79 disqualification: 2 years commencing 2/03/2011 16/10/2012
(Burwood Local Court)
Drive while disqualified from holding a licence Imprisonment: 6 months suspended on enter bond s 12: 2 years disqualification imposed, to commence at the expiration of the current period of disqualification. Disqualification (habitual offender) quashed. 18/12/2014
(Burwood Local Court)
Drive motor vehicle during disqualification period – 2nd off Community service order: 150 hours disqualification: 2 years commencing 18/12/2014 concluding 17/12/2016
disqualification (habitual offender): quashed
23/10/2017
(Burwood Local Court)
Assault occasioning actual bodily harm (DV) Bond s 9: 2 years supv NSW prob service for counselling, educational development or drug and alcohol rehabilitation and report to the community corrections office 31/10/2017
(Burwood Local Court)
Assault occasioning actual bodily harm (DV) (Call up) imprisonment: 12 months commencing 31/10/2017 concluding 30/10/2018 suspended on enter bond s 12: 12 months to attend for counselling, educational development, drug or alcohol rehab supv NSW prob service Contravene prohibition / restriction in AVO (Domestic) Imprisonment: 12 months commencing 31/10/2017 concluding 30/10/2018 suspended on enter bond s 12: 12 months to attend for counselling, educational development, drug or alcohol rehab. supv NSW prob service 2/02/2018
(Burwood Local Court)
Contravene prohibition / restriction in AVO (Domestic) Imprisonment: 4 months commencing
27/10/2017 concluding 26/02/2018
28/09/2018
(Burwood Local Court)
Assault occasioning actual bodily harm (DV) (Call up) imprisonment: 12 months commencing 20/09/2018 concluding 19/09/2019 non-parole period: 4 months commencing 20/09/2018 concluding 19/01/2019 the offender must be supervised by the probation and parole service Contravene prohibition / restriction in AVO (Domestic) (Call up) imprisonment: 12 months commencing 20/09/2018 concluding 19/09/2019 non-parole period: 4 months commencing 20/09/2018 concluding 19/01/2019 the offender must be supervised by the probation and parole service Contravene prohibition / restriction in AVO (Domestic) (Call up) imprisonment: 12 months commencing 20/09/2018 concluding 19/09/2019 non-parole period: 4 months commencing 20/09/2018 concluding 19/01/2019 the offender must be supervised by the probation and parole service Assault officer in execution of duty Conditional release order – conviction: 24 months commencing 28/09/2018 concluding 27/09/2020 supervision: 24 months 28/09/2018 concluding 27/09/2020 supervised by community corrections service Resist officer in execution of duty Conditional release order – conviction: 24 months commencing 28/09/2018 concluding 27/09/2020 supervision: 24 months 28/09/2018 concluding 27/09/2020 supervised by community corrections service Failure to pass the character test
It is not in dispute that, by reason of his criminal record, Mr Kim does not pass the character test set out in the Act.
C: THE RELEVANT LEGISLATION
Subsection 501(3A) of the Act provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(7)(c) provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more …
Subsection 501CA(3) provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The power of the Tribunal to review the decision to refuse to revoke the cancellation of Mr Kim’s visa is provided by section 500 of the Act.
D: DIRECTION NO. 79
Pursuant to subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation, and thus the Tribunal’s power on review. The relevant direction is Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction), which commenced on 28 February 2019. Pursuant to subsection 499(2A) of the Act, the Tribunal is bound to comply with the terms of the Direction.
Subparagraph 6.1(3) of the Direction provides, in part:
Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 provides general guidance and directs that the “factors that must be considered in making a revocation decision are identified in Part C of this Direction”.
Under the heading General Guidance, subparagraph (1) provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C in order to determine whether the mandatory cancellation of Mr Kim’s visa should be revoked. A copy of Part C is “Annexure A” to these reasons.
In paragraph 6.3, the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[6] Primary considerations should generally be given greater weight than the other considerations.[7]
[6] Direction at [6.2(3)] and [8(1)].
[7] Direction at [8(4)].
Paragraph 13(2) provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
PART E: THE ISSUE FOR DETERMINATION
I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 29). Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the preconditions to the exercise of the power have been met.
It is not in dispute that Mr Kim has made representations of the kind referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. Therefore, it is necessary to decide whether “there is another reason [i.e. other than Mr Kim’s passing the character test] why the original decision should be revoked”.[8]
[8] Migration Act 1958 (Cth), s 501CA(4)(b)(ii).
If I am satisfied of all the relevant requirements of subsection 501CA(4)(b), then the cancellation must be revoked. To this extent, “may” in the subsection means “must”.[9]
[9] Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [31].
F: REASONING
F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
I must have regard to matters set out in paragraph 13.1, which include:
o… the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community …;
o[t]he nature and seriousness of the non-citizen’s conduct to date;
o[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[10]
[10] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.
F1.1: The nature and seriousness of Mr Kim’s conduct to date
Mr Kim does not dispute the entries contained in the Nationally Coordinated Criminal History Check dated 25 February 2019,[11] the majority of which are reproduced at paragraph 24 of these reasons.
[11] Exhibit R1 at 34.
Having listened to, and observed, Mr Kim give evidence, I am not satisfied that he was always a reliable witness, particularly in relation to his evidence as to the nature and seriousness of his conduct.
At times Mr Kim was evasive in answering questions, such as those in relation to the warning he received from the Local Court at Burwood when he was sentenced on 2 February 2018.[12] He suggested that he did not understand fully what was being said by reason of his lack of skills in English. I am not satisfied that this was the case.
[12] Exhibit R1 at 44.
Mr Kim appears not to accept full responsibility for his criminal activity, despite his repeated declarations to the contrary. For example, he sought to minimise the seriousness of the assault on his wife in 2010 by suggesting that a friend had reported the incident to assist his wife to obtain a visa based on reports of domestic violence.
On the occasions when Mr Kim suggested that the Police had assaulted him or incorrectly recorded the facts of various incidents, I prefer the records of the Police where they differ from the evidence given by him.
Offence committed on 3 March 2002 (assault on first wife occasioning actual bodily harm)
The Facts Sheet prepared by New South Wales Police in relation to this offence provides the following description:
The defendant and the victim have known one another for the past six years and have been married the past four years. The victim is eight weeks pregnant to the defendant.
About 12.00pm on the 3rd of March 2002 the defendant and the victim were at [address redacted] helping the victims brother un-pack his belongings.
The brother of the victim went to bed. The victim and the defendant then began to have an argument about where they should sleep for the evening in the lounge room of the premises. The victim asked the defendant to come with her to their home in [suburb redacted] for the night. The defendant argued with the victim as he had to work in the morning and did not want to go to [suburb redacted] for the night.
The victim did not want to argue in her brother’s home and went outside and got into her car.
The defendant followed the victim outside to her car and grabbed the victim on the arm preventing her from leaving the premises. The defendant grabbed the victims left arm whilst she was then seated in the vehicle saying “Jump out of the car, come inside”. The victim and the defendant continue to argue about where to sleep for the next five to ten minutes.
The defendant then grabbed the right arm of the victim and said “Come out!”. The defendant then pulled the victim out of the car causing the victim to fall on the ground.
The victim stood up and the defendant then pushed the victim with both hands on her shoulders causing the victim to hit the wall behind her. The victim said “What are you doing, how could you do this I am pregnant!”.
The defendant then punched the victim with a closed right fist to the left side of her face. The victim attempted to cover up and the defendant again hit the victim in the left eye and nose with a closed right fist. The victim fell onto the ground and screamed.
The victims brother came out from the house and asked what was going on. The defendant again tried to get to the victim however the brother stood between the victim and the defendant. The brother then escorted the defendant from the scene …[13]
(Errors in original.)
It is noted in the Facts Sheet that Mr Kim denied punching his wife but admitted throwing his wallet and keys in her face. When he gave evidence, Mr Kim offered a further explanation – that it was he and his brother-in-law who were in an altercation, and Mr Kim’s wife was only hurt in the process of attempting to break them up. Mr Kim said that he does not remember whether he threw his wallet and keys in his wife’s face. An Apprehended Violence Order was issued against Mr Kim for the protection of his wife.[14]
[13] Exhibit R2 at 5.
[14] Exhibit R2 at 10.
Offence committed on 2 August 2010 (common assault on second wife)
The New South Wales Police Facts Sheet describes the circumstances of this offence as follows:
About 9pm on Monday the 2nd of August 2010, the accused has arrived home at [address redacted], having already consumed an unknown quantity of alcoholic liquor. The accused was upset and angry because the victim had not answered a number of telephone calls he had made throughout the day. The accused and victim have begun arguing about this. The accused has kicked the victim’s left knee and locked her inside the bedroom of the apartment.
The accused opened the door five minutes later and began throwing the victim’s cosmetics and clothes onto the floor. The accused told the victim to “Get out” and proceeded to take hold of the victim’s hair with his hand and pull her along the ground. The accused has punched the victim to the left side of her head at least five times. The accused’s assault of the victim resulted in a small red mark to the left forehead area and a bruise approximately .5cm diameter on her left hand …[15]
[15] Exhibit R2 at 33.
Mr Kim pleaded guilty to the charge and was convicted. He was directed to enter into a good behaviour bond for a period of two years on condition that he comply with the terms of the Apprehended Violence Order issued against him to protect his wife.[16] When he gave evidence before me, Mr Kim denied punching his former wife.
[16] Exhibit R3 at 35.
Offence committed on 9 August 2017 (assault on stepdaughter occasioning actual bodily harm)
On this occasion, Mr Kim’s stepdaughter attempted to intervene in an argument between Mr Kim and her mother (Mr Kim’s current wife) during which she (the stepdaughter) swore at Mr Kim.
The New South Wales Police Facts Sheet describes what proceeded as follows:
This has enraged the accused who has commenced to push the victim back into the hallway with both hands to the victims chest. The victim has stumbled backwards into a wall where the accused pinned her against a wall with his hands around her chest and neck region causing scratches to the left side of the victims neck. The accused pushed the victim into her own bedroom and onto her bed and held her down. This has caused the victims lip to bleed.
The victim has attempted to free herself by clawing, scratching and kicking the accused. The victim’s mother Eun KIM has began scratching the accused back in an attempt to help the victim. The accused let go of the victim and went back into the main bedroom.
The victim began to cry and has contacted police …
…
The accused was placed under arrest and cautioned and escorted outside the unit. The accused started yelling and resisted efforts to remove him from the unit resulting in police utilising a knee strike and wrist lock. After a few moments, the accused complied and was removed from the unit and out to the police caged truck …[17]
(Errors in original.)
[17] Exhibit R2 at 67.
Mr Kim acknowledged that he pleaded guilty to the offence as alleged. An Apprehended Domestic Violence Order was issued against Mr Kim to protect his stepdaughter.[18]
[18] Exhibit R2 at 76.
Offences committed on 20 September 2018 (resisting/assaulting Police in the execution of duty)
During the evening of 20 September 2018, Mr Kim attended the former matrimonial home in breach of the Order. The Police attended having been informed that Mr Kim was intoxicated and arguing with his wife.
Police documents record the following incident when Mr Kim was informed he was under arrest for breaching the Order:
Police entered the bedroom and observe the accused standing in the bedroom, in breach of his current orders. Police observed the accused was unsteady on his feet, his balance was well affected and there was a strong smell of intoxicating liquor. Police formed the opinion the accused was well affected by intoxicating liquor. Police introduced themselves to the accused and informed him he was under arrest for breaching the AVO.
…
Police told the accused to turn around, which he complied. Police began to search the accused and remove property from his person and place it on the bed. Whilst Police were searching the accused, he screamed loudly and turned around quickly then pushed [one of the Police Officers] in the chest. Police have reacted to this by utilising an approved ‘check-drill’ striking the accused in the upper chest, which has knocked the accused onto the bed.
Police have moved in to attempt to restrain the accused, whilst moving towards him, the accused violently kicked at [one of the Officers] striking him in the chin, feeling immediate pain. The accused began to scream and yell towards Police, fearing further violent confrontation Police removed their Oleo-resin Capsicum (O.C) Spray and yelled to the accused ‘stop all you’ll be sprayed’. The accused kicked towards Police again and attempted to stand up. It was at this point, Police delivered a short burst of O.C spray, which struck the accused in the face, taking immediate effect. Police moved in a took a hold of the accused, the accused began to violently resist Police efforts to restrain him by trying to punch and kick Police whilst he continued to scream and yell in another language. The accused was taken to the ground and continued to violently resist Police efforts to restrain him. Police were required to utilise and number of approved knee and hammer fist strikes. Police required the assistance of four (4) officers in total to eventually gain control of the accused when he was hand-cuffed to the rear. The accused was escorted out of the unit complex and sat in the rear of the Police cage truck …[19]
(Errors in original.)
[19] Exhibit R2 at 137.
Mr Kim pleaded guilty to the charges against him. At the hearing of this application, he claimed that he was assaulted by the Police. I do not accept this evidence.
Sentencing Remarks 28 September 2018
When Mr Kim came before the Local Court at Burwood on 28 September 2018, Magistrate Denes said, in part:
Mr Kim comes before the Court having pleaded guilty to an offence of breaching an AVO on 20 September 2018. By pleading guilty to that he has been in breach of two suspended sentences. … The assault was a serious one. The victim is vulnerable. She actually went to the assistance of her mother and was assaulted as a result. An AVO was put in place for him not to go to the house and not to contact the girl. He breached it within three days.
…
When he was arrested he certainly did not comply, if I can put it that way with the directions of the police and they had to spray with the OC spray. He was struggling so much it took four police to gain control of him. He was not offered an interview that night because of his level of intoxication and violent behaviour.
…
… I accept he accepts responsibility for this and maybe up until now Mr Kim did not understand how serious offences of breaching AVOs are considered. … There is a history of non-compliance whether it be driving whilst disqualified for drink driving even. In 2010 he was convicted of a domestic violence matter with a condition to be of good behaviour. He did not comply with the condition and he ended up having to do community service.[20]
[20] Exhibit R1 at 53.
Provision of false information to a Government Department
In December 2007, Mr Kim returned to Australia from Thailand. When he completed his Incoming Passenger Card, he stated that he did not have any criminal convictions.[21] This information was false as he had been convicted of assault occasioning actual bodily harm in 2002.
[21] Exhibit R1 at 87.
When asked during the hearing why he did not disclose the assault, Mr Kim replied that at the time of filling out the card he did not remember the conviction.
Discussion
Mr Kim’s conduct to date must be regarded as very serious, particularly as it involved violent assaults on two women and a child, all of whom were members of his immediate family entitled to expect that he would protect them, not attack them.
In addition to the assaults on members of his family, Mr Kim violently resisted arrest and assaulted Police Officers carrying out their duty to ensure Mr Kim did not continue to breach the Order issued to protect his stepdaughter.
Mr Kim breached the Order on three separate occasions – 2 October 2017, 26 October 2017 and 20 September 2018. Even after he was gaoled and his visa was cancelled on the first occasion, he again breached the Order.
When interviewed for the preparation of a pre-sentence report in relation to the breach on 26 October 2017, Mr Kim stated that he was fully aware at the time of the offence that he was breaching a recently finalised Court order. He acknowledged also that his stepdaughter appeared to be afraid of him and that he had no good excuse for what he had done.[22]
[22] Exhibit R2 at 87.
The last breach was less than one month after his release from immigration detention. In doing so, he continued to cause his stepdaughter to be concerned and showed a disregard for the law and the Order of the Court. His explanation that he was invited to the home by his wife illustrates his lack of respect for the law. At the hearing before me he admitted that he intended to “defy” his stepdaughter.
As appears from the record of Mr Kim’s convictions, he was convicted of driving with a middle range prescribed concentration of alcohol in 2005. Following this he was convicted of driving while disqualified from holding a licence on six occasions between January 2006 and December 2014. In January 2006, he was issued with a habitual offence warning letter and in April of the same year he was declared an habitual offender. He continued to offend.
Mr Kim gave evidence that he drove while disqualified so that he could continue to operate his cleaning business. His record indicates that on at least two occasions this was not the case.
While Mr Kim explained the reason for his continued offending, it does not excuse his conduct. These offences must also be regarded as serious as they involve a risk to other road users and a repeated disregard for the laws of this country.
F1.2: The risk to the Australian community should Mr Kim commit further offences or engage in other serious conduct
The Direction states that I must have regard to the following considerations cumulatively:
(a)[t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[23]
[23] Direction at [13.1.2(1)].
F1.2.1: The nature of future harm
Should Mr Kim further engage in conduct similar to that in which he has engaged in the past, there would be a significant risk of serious physical and/or psychological harm to members of the community, including members of his own family and members of the Police Force. In addition, significant public resources would be expended in dealing with his anti-social conduct.
F1.2.2: The likelihood of Mr Kim engaging in further criminal or other serious conduct
Evidence of Mr Kim
In his statutory declaration made 6 September 2019,[24] Mr Kim said that he needs to stay in Australia to be able to help his daughter who is now only 17 years old and who has no mother or other family in Australia. He wishes to provide a stable home for her and to support her through university. He says that he is ashamed of his past conduct and remorseful of it.
[24] Exhibit A1.
By reason of his relatively short prison sentence and his time spent in immigration detention, Mr Kim has been unable to take part in any rehabilitation programs to address his excessive use of alcohol or to assist him with anger management. He says that he has contacted a number of organisations, and, should he be released from immigration detention and be allowed to live in the Australian community, he will immediately seek professional assistance in this regard. I accept that he genuinely intends to do this.
Mr Kim has had the assistance of a psychologist whilst he has been in immigration detention and he acknowledges that he needs further help.[25]
[25] Exhibit A1 at [49].
Evidence of Mrs Kim, Wife
Mrs Kim provided statutory declarations made 5 September 2019[26] and 9 October 2019.[27]
[26] Exhibit A9.
[27] Exhibit A10.
Mrs Kim is of the view that Mr Kim has taken full responsibility for his crimes and that he can change with help and rehabilitation. She said that he has only ever been violent or aggressive when drinking. She believes that once Mr Kim receives the treatment he requires “our lives will go back to normal and our family will have a happy and successful future together”.[28]
[28] Exhibit A9 at [21].
Evidence of Mr Stoker, Clinical Psychologist
Mr Stoker assessed Mr Kim by way of a telephone interview on 19 September 2019. He provided a report dated 8 October 2019.[29]
[29] Exhibit A3.
In the opinion of Mr Stoker, Mr Kim accepts full responsibility for his past conduct and feels ashamed. Mr Kim stopped consuming alcohol while in prison and detention. He does not intend to resume alcohol consumption, but recognises that he needs help with his alcohol abuse.
Mr Stoker reported, in part:
I advised him, in my opinion, not to have any further contact with his stepdaughter. I also advised him that any reconciliation with his wife, in my opinion, would be counter-productive. He seemed to listen to what I said. However, he presented as someone who has autistic traits – he did not seem to pick up non-verbals in the communication I had with him. He found it very difficult to answer questions with a single “yes” or “no” and, when I asked him regarding certain dates of his offending etc, he was very pedantic and would change the date by a day or two, which is typical of people suffering Asperger’s Syndrome. He, certainly, in my opinion, would have had very poor ability to read non-verbal communication and to express himself well in life. His autistic traits would have been exacerbated by alcohol abuse.[30]
[30] Exhibit A3 at 7.
Mr Stoker is of the opinion that Mr Kim is suffering from a Major Depressive Disorder and that he has developed an Alcohol Abuse Disorder as a result of the psychosocial stressors related to his marriage failure, his being a single parent and his business failure and associated bankruptcy.[31] Mr Stoker noted that Mr Kim would benefit from an anger management course.
[31] Exhibit A3 at 9-10.
In the opinion of Mr Stoker, Mr Kim should be “referred to both a psychologist and a psychiatrist to treat his depression, Asperger’s and ascertain whether he requires psychotropic medication”.[32]
[32] Exhibit A3 at 11.
When he gave evidence, Mr Stoker expressed the opinion that the experience of immigration detention has been a “big shock” to Mr Kim and that he (Mr Stoker) would be “very surprised” if Mr Kim engaged in any violent conduct in future. In his opinion, Mr Kim has the intelligence and resilience to enable him to rehabilitate himself without the assistance of others if this was necessary. However, Mr Stoker agreed that if Mr Kim continues his present family relationships it is possible that this will result in his committing further offences.
When interviewing Mr Kim, Mr Stoker asked him if he had any previous convictions, other than the conviction for the assault on his stepdaughter. Mr Kim said that he did not.
Discussion
Mr Kim has repeatedly expressed remorse for his past conduct and has assured the Tribunal that he will not re-offend. I take into account the opinion of Mr Stoker that he would be surprised if Mr Kim engaged in any violent conduct in the future. However, I have come to the conclusion that there remains a significant risk that if Mr Kim returns to live in the Australian community he will re-offend by committing violent offences and/or offences against the traffic laws.
Mr Kim has given assurances in the past that he will not re-offend and has not kept to those assurances. In April 2006, a Court Duty Officer stated in a report to the Local Court:
When reflecting on the offence, Mr Kim agreed with the Police facts, claiming that he had to drive as a requirement of his employment as he is required to bring all the cleaning equipment to various worksites. He stated that he works six to seven days per week and on two of those days none of his employees are capable of driving. When discussing the concept of license entitlement, the offender offered very little understanding, however he claimed that he would refrain from driving until qualified to do so.[33]
[33] Exhibit R2 at 24.
A pre-sentence report of 11 September 2007, again in respect of a driving whilst disqualified offence, stated in part:
Despite accepting responsibility for the offence, Mr Kim made attempts to justify his offending. Namely, he claims that the management of his business relies heavily upon his driving and that at the time of the offence he was on his way home after taking an employee home. It is noted that Mr Kim has previously verbalised good intentions in relation to addressing his offending. However, ultimately it appears that he could not be troubled with the demands of organising and adhering to alternative arrangements to driving and he has subsequently re-offended with the current offence.
This issue was discussed with Mr Kim, who presented a few days later with a plan that if implemented, may reduce his re-offending in a similar manner …
…
During the interview for the preparation of this report, he was advised that the current offence breaches his previous Bond and that this could have serious implications for him. He stated that he understood and expressed a willingness to abide by any sentencing the Court deems appropriate.[34]
Despite these warnings, Mr Kim continued to offend.
[34] Exhibit R2 at 29-30.
When he gave evidence, Mr Stoker said that Mr Kim’s previous convictions for violent offending, of which he was unaware when he wrote his report, were relevant to his assessment of the risk of Mr Kim’s re-offending. He agreed that if Mr Kim’s “very dysfunctional” family situation continued it would provide significant background pointing to the likelihood of his being violent in the future. In this regard, I take into account Mr Kim’s expressed intention to endeavour to re-establish his family relationship with his wife, his daughter and his stepdaughter.
Unfortunately, Mr Kim has received only limited rehabilitative treatment in relation to his alcohol addiction, his repeat offending, and his apparent difficulties with anger management. Some supervision was provided by the justice system but this was not successful. Despite the repeated role of alcohol in his offending his alcoholism has gone untreated.
Mr Kim has received some support by way of visits by clergy from his Church and from Mr House, the Chaplain at the Silverwater Correctional Facility where Mr Kim was imprisoned for four months in 2018-19.
In a statement provided to the Tribunal, Mr House stated, in part:
I have always found Jae to be a welcoming, helpful and encouraging inmate.
Jae is an attendee of our Sunday Chapel Service,
Jae is employed by C.S.I. in this centred [sic] as a Pod Sweeper and is a respected worker.
Jae is in good standing with this Centre with no pending charges.
Jae has discussed his charges with me. It appears to be extremely remorseful for his actions, the pain and stress it has caused his family, friends, loved ones and the community.[35]
[35] Exhibit A8.
In his statutory declaration made 6 September 2019,[36] Mr Kim stated that he had contacted nine different agencies for assistance. However, these agencies were only contacted in August 2019, after the decision not to revoke the cancellation decision was made. Mr Kim did not try to arrange for assistance in 2018 in the time between his release from his first period in immigration detention and his second period of incarceration.
[36] Exhibit A1.
Mr Kim says that he has arrangements to start treatment immediately upon his release from detention. However, the effectiveness of such treatment and his ability to live in the community without re-offending is undetermined.
I am satisfied that there is a significant risk that Mr Kim will engage in further criminal or other serious conduct if he is released into the community.
F1.3: Discussion – protection of the Australian community from criminal or other serious conduct
Mr Kim has been found guilty of assaults on two women, a child and Police Officers. He has repeatedly breached Australian law and has shown a disregard for Australia’s institutions. Unfortunately, he has not received the treatment necessary to address the problems which have contributed to his offending.
The need to protect the Australian community weighs heavily in favour of not revoking the cancellation decision.
F2: Primary Consideration 2: Best interests of minor children in Australia affected by the decision
The only minor child in Australia who will be affected by a decision in this application is Mr Kim’s daughter who is now 17 years old. At present she is attending school and is living in a supervised refuge for children. She is estranged from Mr Kim, apparently because she is upset by his continued support for Mrs Kim and his stepdaughter. Mr Kim last spoke to his daughter in November 2018. There has been some limited email contact since that time.
Ms Kim has told Mr Kim that she does not want to live with him should he be released from detention. Mr Kim respects his daughter’s wishes in this regard.
Statement by Ms C. Kim, Daughter
Ms Kim provided an unsigned statement dated 27 February 2018 in relation to the previous cancellation of Mr Kim’s visa. At that time, she expressed the wish that her father be able to remain in Australia.
Ms Kim felt that her father’s behaviour had been greatly impacted by his alcohol addiction which had been a problem “for many years”.[37] She further stated:
I truly believe, if my father was permanently removed from Australia, this would have an extremely negative impact upon my overall wellbeing, in particular at this age and as I am currently going through my own stressors.[38]
[37] Exhibit R1 at 117.
[38] Exhibit R1 at 117.
Apart from statements made by Mr Kim, I do not have evidence of Ms Kim’s present views in relation to the effect upon her of a decision requiring her father’s return to South Korea. Mr Kim gave evidence that Ms Kim declined to provide a further statement as she would be too distressed by any involvement in these proceedings.
In assessing the interests of Ms Kim, I have taken into account the evidence of Mr Stoker that the re-establishment of the family unit would point to an increased risk of Mr Kim becoming violent in the future. While there is no evidence to suggest that he has exhibited violence directly towards his daughter, it is of concern that she may be living in a family environment in which she may witness violence towards others.
Despite the present estrangement of Ms Kim from her father, I have come to the conclusion that, on balance, her interests would be best served by revoking the cancellation of his visa. There remains the possibility of some reconciliation between them. Mr Kim will be better able to support his daughter if he is living in Australia.
F3: Primary Consideration 3: Expectations of the Australian community
Paragraph 13.3 of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
In YNQY v Minister for Immigration and Border Protection,[39] Mortimer J said:
76. In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[39] [2017] FCA 1466.
Since the judgement in YNQY, the Federal Court delivered its judgement in DKXY v Minister for Home Affairs.[40] After referring to the relevant paragraphs of the reasons in YNQY, one of which I have set out above, Griffiths J said:
29. These paragraphs in YNQY appear in that part of her Honour’s judgment in which she was addressing a contention that the AAT had erred by failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
30. In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant …
31. As Mr Kim here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.
(Emphasis in original.)
[40] [2019] FCA 495.
After referring to those paragraphs in Uelese v Minister for Immigration and Border Protection[41] relied upon by the primary Judge in YNQY to support the proposition that the primary consideration of the expectations of the Australian community will invariably weigh against revocation of a mandatory cancellation, Griffiths J continued:
33. … There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have “due regard” to the Government’s views on Australian community expectations. What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
[41] (2016) 248 FCR 296.
Having considered these judgements, I have come to the conclusion that I should adopt and apply what has been described as “the broad approach”.[42] As is usually the case in matters such as this, the Tribunal has received little, if any, assistance by way of evidence in taking into account this primary consideration.
[42] DKXY v Minister for Home Affairs [2019] FCA 495 at [34].
There can be little doubt that different individuals and groups within the Australian community will hold differing views as to the particular circumstances in which the cancellation of a visa should be revoked; some, but not all, will support the Government’s view.
Taking into account all of the circumstances of this matter, I have come to the conclusion that the Australian community would expect that the cancellation of Mr Kim’s visa not be revoked. Those circumstances include:
·Mr Kim’s convictions for physical violence towards both of his former wives and his stepdaughter;
·his violence towards Police involving both assault and resisting arrest;
·his lack of respect for Australian law as is evidenced by his repeated breach of the Apprehended Domestic Violence Order and his repeated driving while disqualified;
·the risk of his re-offending, taking into account that he has not had the benefit of significant rehabilitation programs and that he has not taken steps until recently to address his alcohol addiction.
F4: Other considerations set out in the Direction
At paragraph 39 of these reasons I have set out paragraph 14 of the Direction, which mandates that I take into account further considerations as are relevant.
F4.1 International non-refoulement obligations
There is no evidence to suggest that Australia’s international non-refoulement obligations are of relevance in this application or that Australia owes any such obligations to Mr Kim.
F4.2 Strength, nature and duration of ties to Australia
Paragraph 14.2 of the Direction provides:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Evidence of Ms H. Kim, Stepdaughter
Ms Kim provided a statutory declaration made 5 September 2019[43] and gave evidence at the hearing.
[43] Exhibit A11.
Under the heading The Future, Ms Kim stated, in part:
If my stepfather’s visa remains cancelled, then my mum and I would not be able to afford to live, life is already hard. Life is expensive and my mum doesn’t work. My mum had a shoulder operation in June [sic] My step father was looking after us financially.
[My stepsister] and I are no longer friends and she has moved out. We don’t talk. She is living at a refuge. She is only 16 years old. I am sorry for her because she doesn’t have a mum and now her dad has been taken away.
I want to see our family recover from all these problems and be able to be together in a peaceful home. I feel our lives have been ripped apart.
The future is scary, because if my step father gets sent back to South Korea then I am worried about my future, the future of my mum and [my stepsister]. I don’t want to return to South Korea. One of the main reasons why my mum and I came to Australia is because I was struggling with the Korean culture. In Korea, it is normal for High School students to go [sic] tuition colleges until 1 or even 2am. Students who do not do this, naturally fall behind in class and those students are often looked down upon and bullied for not being good enough.
I am so happy living in Australia and thinking that I would have to leave all of my friends and my lifestyle behind to assimilate into the Korean culture again makes me feel very anxious …[44]
[44] Exhibit A11 at [17]-[21].
Discussion
Mr Kim has resided in Australia for the past 22 years. His wife, daughter and stepdaughter reside permanently in Australia. His daughter was born in Australia and is an Australian citizen.
Mr Kim operated a business in Australia. He has also worked as an employee of another business. In these roles he has paid taxes and has otherwise contributed to Australia. His contribution as an employee is confirmed by the statement of a former employer, Mr Chandra.[45]
[45] Exhibit A8.
Mr Kim has been a member of his Church’s congregation in Australia.
I am satisfied that Mr Kim has had strong and continuing ties to Australia for approximately the past 20 years.
F4.3 Impact on Australian business interests
Although Mr Kim has worked in Australia and at times operated his own business employing others, there is insufficient evidence for me to be satisfied that refusing to revoke the mandatory cancellation would have a significant impact on Australian business interests.
F4.4 Impact on victims
On the evidence before me, I am satisfied that the victim who would be most impacted by a decision to revoke the mandatory cancellation of Mr Kim’s visa would be his stepdaughter. Taking into account her evidence to which I have already referred, I am satisfied that a decision to revoke the mandatory cancellation of Mr Kim’s visa would not have a negative impact on her.
I do not have sufficient evidence to enable me to make any further finding as to the impact of a decision to revoke the mandatory cancellation on the Australian community, including the other victims of Mr Kim’s crimes and their families.
F4.5 Extent of impediments Mr Kim may face if he is removed from Australia
If Mr Kim is removed from Australia he would be returned to South Korea. He is a citizen of that country and speaks the language fluently. He received his schooling and undertook some tertiary study in South Korea. His parents and one of his brothers live there.
While I accept that Mr Kim may have some difficulty in obtaining employment, this consideration does not weigh in favour of revoking the cancellation.
PART G: THE BALANCING EXERCISE
In balancing the various considerations, the need to protect the Australian community weighs heavily in favour of refusing to revoke the mandatory cancellation of his visa. This is particularly so in circumstances where Mr Kim has been violent to two women and to a child with whom he was in a parental relationship, and where there is a significant risk that he will re-offend.
Mr Kim has shown a willingness to continue to break the law. This is demonstrated by his repeated disregard for Australia’s laws and the role of the Police in enforcing them. His offending has taken place over a period of approximately 16 years and commenced within five years of his arrival in Australia.
In addition, the expectations of the Australian community similarly weigh in favour of refusing to revoke the cancellation.
On the other hand, I have decided that the best interests of Mr Kim’s daughter favour his being able to return to live in the Australian community. Similarly, Mr Kim’s ties with the Australian community and, in particular, his ties with his immediate family members weigh in favour of revoking the cancellation. He has lived in Australia for the major part of his adult life and has operated a business here. I accept his evidence that he would set up another business in Australia should he be free to do so.
I accept also that Mr Kim would experience some difficulty in obtaining employment in South Korea. However, the evidence before me does not suggest that he would experience significant impediment should he return to live in South Korea. He has his parents and a brother living there and he speaks the language fluently.
Having carefully considered all of the evidence, I have decided that the considerations in favour of not revoking the cancellation significantly outweigh those in favour of revocation, and that the risk of Mr Kim re-offending is unacceptable. As a result, I have come to the conclusion that there is not another reason why the cancellation of Mr Kim’s visa should be revoked.
There is in evidence a number of documents comprised in Exhibit R3. By agreement of the parties, and subsequent order of the Tribunal, access to these documents has been restricted. In view of the ultimate conclusion I have reached, I have not taken them into account in reaching the decision not to revoke the cancellation of Mr Kim’s visa.
PART H: CONCLUSION
The reviewable decision made 30 July 2019, being the decision of a delegate of the Minister not to revoke the cancellation of Mr Kim’s Class BB Subclass 155 (Five Year Resident Return) visa, will be affirmed.
I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
........................................................................
Associate
Dated: 23 October 2019
Dates of hearing: 14 and 18 October 2019 Solicitors for the Applicant: Ms M Mamarot of SouthWest Migration and Legal Services Solicitors for the Respondent: Mr K Eskerie of Sparke Helmore Lawyers ANNEXURE A
PART C
13. Primary considerations - revocation requests
(1) Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A noncitizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c)Expectations of the Australian community.
13.1 Protection of the Australian community
(1)When considering protection of the Australian community, decisionmakers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen's conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
13.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a.The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b.The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
13.2 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or
non-citizen's ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
13.3 Expectations of the Australian community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
14. Other considerations - revocation requests
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
International non-refoulement obligations
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Strength, nature and duration of ties
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of nonrevocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Impact on Australian business interests
(1) Impact on Australian business interests if the non-citizen's visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Impact on victims
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afford procedural fairness.
Extent of impediments if removed
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen's age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
-
Remedies
0
5
0