Kim and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1254

Kim and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1254 (5 August 2025)
Applicant:Hyun Mi Kim
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3610

Tribunal:Deputy President O'Donovan
Place:Brisbane
Date of decision: 5 August 2025
Date reasons published: 6 August 2025

Decision:Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the cancellation of the applicant’s visa.

Statement made on 06 August 2025 at 4:13pm
Catchwords
MIGRATION – whether to revoke the mandatory cancellation of applicant’s visa – character test – substantial criminal record – theft – fraud – gambling addiction – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed – citizen of South Korea – estranged from family in South Korea – adult son living in Australia – consideration of protective factors – decision under review set aside and substituted.
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501.
Cases
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Secondary Materials
Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons

The applicant was born in the Republic of Korea (South Korea) in 1964. She was raised there, completed university studies there and was married there. In 1988 she gave birth to her only son, YH. Not long after her son’s birth, her marriage ended. After more than a decade in business with mixed success, she decided to send her son to Australia to live with his aunt and undertake high school. She visited him in 2001 and decided to stay on in Australia.[1]
[1] Exhibit A1, AE1, 1-8 9 (‘Applicant’s Statement’), [16]-[18].
The applicant however suffers from a gambling addiction. As a result of her addiction, she engaged in criminal behaviour on three separate occasions. In 2004 she was convicted on three counts of entering a casino as an excluded person. In 2013 she was convicted of stealing following theft of money from her employer’s safe to fund her gambling habit. In 2023 she was sentenced to 9 years imprisonment after dishonestly obtaining more than $3 million by effecting fraudulent transactions on her employer’s trust account.
On 3 September 2024 the applicant was notified that her visa had been cancelled under s 501(3A) of the Migration Act 1958 (‘Migration Act’) on the basis that she had a substantial criminal record. On 17 September 2024 the applicant requested revocation of the cancellation of her visa. On 12 May 2025 a delegate of the Minister decided under s 501CA(4) of the Migration Act, not to revoke the visa cancellation decision. On 16 May 2025 the applicant applied to this Tribunal for review of the s 501CA(4) decision.
The applicant accepts that she does not pass the character test,[2] and there is adequate evidence before me to establish that that is the case. The only issue that must be determined is whether there is another reason why the original decision should be revoked.
[2] Applicant’s Statement of Facts, Issues and Contentions dated 22 July 2025, [15].
The Tribunal received into evidence the following documents:

Exhibit ID

Description

G

G Documents (G1 to G17, 116)

A1

Applicant’s additional evidence bundle (AE1-AE21)

R1

Respondent’s tender bundle (TB1 to TB3)

R2

Applicant’s additional evidence bundle part 2 (AE2-1 to AE2-9)

The applicant is still serving her sentence and is not yet eligible for parole. The applicant attended the hearing in person and was cross examined
Her son and daughter in law gave evidence on her behalf. Documentary evidence was also received from two forensic psychologists, as well as the applicant’s treating psychiatrist. Only Dr James Freeman, a forensic psychologist, appeared at the hearing. He appeared by telephone; he adopted his report and was cross-examined.
Framework
The Tribunal has jurisdiction under s 500(1)(ba) of the Migration Act to review the decision.
Section 501CA(4) of the Migration Act provides that the Minister may revoke the cancellation decision if (following representations) the Minister is satisfied, that there is another reason why the original decision should be revoked.
In considering that question, I must have regard to the matters contained in a ministerial direction issued under s 499 of the Migration Act. The relevant direction is Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, which was executed on 7 June 2024 and commenced on 21 June 2024 (‘the Direction’). Informed by the principles identified in the Direction, I must take into account the considerations identified in paragraphs 8 and 9 when I am considering the question of whether there is another reason why the original decision should be revoked.
The discussion below of the principles and considerations I must take into account under the Direction is drawn largely from one of my earlier decisions on this issue[3] but it has been revised to appropriately reflect the circumstances of this case.
[3] Gray and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3363.
The Direction is divided into 'Primary' and 'Other' considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The protection of the Australian community consideration should generally be given greater weight than other primary considerations and primary considerations should generally be given greater weight than 'other' considerations. There is however scope to weight 'other' considerations more highly in appropriate circumstances, and similar flexibility is available in the relative weighting of primary considerations.
The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
The other considerations are:
(a)The legal consequences of the decision;
(b)The extent of impediments to the applicant establishing and maintaining basic living standards if removed from Australia;
(c)The impact on Australian business interests.
The principles set out in paragraph 5.2 of the Direction make it clear that the safety of the Australian Community is the highest priority of the Australian Government. Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of, staying in Australia. The Australian community expects that the Australian Government can and should cancel non-citizen's visas if they engaged in conduct, in Australia, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. With respect to a decision to cancel a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling a visa. The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling the visa, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Fact finding principles
In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection (‘HZCP’), that '…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error'.[4] The Court made clear that a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked. The applicant has been very frank with the Tribunal about what she has done as she was with the criminal courts when she was charged with offences. There is no significant inconsistency between the facts on which the applicant was sentenced and the facts she submitted the Tribunal should find.
[4] (2019) 273 FCR 121, 135 [68].
The applicant’s credit
The applicant has given very straight forward evidence about her criminal history. She admits all of the basic facts that led to the convictions and there is no reason to doubt her explanations concerning the surrounding circumstances. I accept her as a truthful witness. However, where her version of events departed from information contained in contemporaneous material, I have treated the contemporaneous documents as more reliable on the basis that the applicant’s memory, like everyone else’s, is fallible.
FACTS
As noted above the applicant was born in South Korea in 1964 and that is where she grew up. She has one sister who was born in 1969. Her father had a gambling problem and largely abandoned the family soon after the applicant’s sister was born. The applicant was primarily raised by her mother.[5] She did well at school and at university and completed a degree in education. She married in 1986 and in 1988 gave birth to her son YH. However, her husband, after completing his national service in South Korea, developed issues with his mental health.[6] This resulted in separation and ultimately divorce. For a variety of reasons the applicant decided that it would be a good idea for her son to study in Australia and she arranged for YH to stay with her sister HA in Sydney and undertake High School in Australia. YH moved to Australia in 2001.
[5] Exhibit A1, AE16, 85-108 (‘Report of Peter Jordan’), 8.3.
[6] Exhibit A1, AE15, 69-84 (‘Report of Dr James Freeman’), 7.2.
The applicant decided to visit her son in May 2001. She then decided that it would be in her son’s best interests if she joined him in Australia. Apart from short periods away from Australia in 2002, 2016 and 2018 the applicant has lived in Australia ever since.
Soon after she decided to stay in Australia the applicant moved to the Gold Coast. Her son followed her soon after. She worked as a kitchenhand and in a sales and marketing position with a company called Queens Opal.[7]
[7] Report of Dr James Freeman, [6.10]; Applicant’s statement, [17].
The applicant had been raised a Christian in South Korea and when she moved to the Gold Coast, she connected with a church there.[8]
[8] Applicant’s Statement, [23].
She also began to attend the casino regularly. By 2003 she recognised that she had a problem and made an application to the casino to legally ‘self-exclude’ her. The self-exclusion order meant that she was not legally allowed to go to the casino. The temptation of the casino however proved to be too great, and she would occasionally sneak in. She was caught doing this by the casino and was charged for entering the casino which resulted in a $1000 fine and a good behaviour bond. No conviction was entered.[9]
[9] G-Documents, G4, 43; G5, 46.
The applicant then had a long period where she did not gamble.
Her son performed well at school and at university. He met his now wife NK at university and they married in June 2012. NK is a citizen of Japan and a permanent resident of Australia.
In the same year, the applicant began working at a supermarket as the Duty Manager. The supermarket chain held a national convention at Star Casino and after that event the applicant resumed gambling. By mid-2013 she was attending the casino almost every night and she began building up debts.[10]
[10] Applicant’s Statement, [34]-[35].
In July 2013, the applicant was given access to the safe at the supermarket where she worked. She engaged in the self-delusion, common among addicted gamblers, that if she borrowed a significant sum from the safe, she could use it to gamble and pay off her debts with the winnings.[11]
[11] Ibid, [36].
On 24 July 2013 she removed more than $6000 from the safe and took it to the casino to gamble. She lost all of the money. She then borrowed $5000 from a friend that night to try and win back the amount but lost the $5000 as well. On the afternoon of 25 July 2013, the applicant returned to the store and stole a further $1800 from the safe. She again lost all of the money. She then borrowed a further $3000 from two friends which she then lost at the casino.
On 27 July she removed a further $5000 from the safe at the store She gambled continuously from Saturday night until 4.30am Monday morning. She lost all of the money she had taken. She went back to the store and took a further $2424 from the safe and $2260 from the safe float. She returned to the casino and gambled until she had $242 left. She then rang the operations manager at the store and made admissions to him. The owner of the store was advised, and the police were called. In total she had stolen $18,031. When interviewed by police, she made full admissions.[12]
[12] Exhibit R1, TB3, 19-20.
She was dealt with in Southport Magistrates Court on 28 November 2013. She was convicted on four counts of ‘Stealing by Clerks and Servants’ and given a suspended sentence of 18 months. Convictions were recorded and she was ordered to pay restitution.[13]
[13] G-Documents, G4, 43.
After working in the hospitality industry, the applicant found work in a solicitor’s office in 2014. She was not well paid there and felt she was given too much work and responsibility. She was however diligent in her work and stayed away from gambling for many years.[14]
[14] Applicant’s Statement, [49]-[50].
In the meantime, her son and his wife moved to Brisbane around 2013 and established a very successful business that occupied a great deal of their time.[15]
[15] Exhibit A1, AE2 (‘Statutory Declaration of YH’), [18]-[21], [26].
The applicant’s gambling recommenced in 2018 when she attended an RSL Club for dinner and played the poker machines. When she began to make a habit of playing the poker machines, she decided that she should change her form of gambling where she had more control over the outcome. She returned to gambling at the local casino.[16]
[16] Report of Dr James Freeman, [3.3].
She returned to South Korea briefly in 2018 to attend a wedding. When she returned to Australia she filled out an immigration card and denied that she had any convictions.[17]
[17] G-Documents, G13, 83.
Her gambling then increased and around July 2020 she started taking money from the firm she was working for. She had worked up some relatively small gambling debts at this point, but she wished to clear them if she could. She was a trusted employee and as a consequence handled cheques for significant sums. When her employer left her a stamp duty cheque without a payee on it, she put in her own name and banked the cheque. She used the funds to clear her debts and to gamble.[18]
[18] Report of Peter Jordan, [8.46].
Having got away with it once, the applicant engaged in further and larger fraudulent transactions to feed her gambling habit. On a number of occasions, the applicant transferred money directly from the firm’s trust account into the account of a friend. That friend would retain part of the money and the friend would then transfer the remainder into the applicant’s personal bank account. On a number of occasions, the applicant also had clients transfer money directly into her bank account, rather than the legal practice’s trust account, as ought to have occurred. This included payments for legal fees to the firm and also stamp duty fees which were payable to the Office of State Revenue.[19]
[19] Exhibit A1, AE19, 115-116, [5]-[6].
In November 2021 on the recommendation of Star Casino the applicant again voluntarily banned herself. However, her addiction was such that she started flying to Cairns and Townsville to gamble at the casinos there.[20]
[20] Report of Dr James Freeman, [3.5]
By the time the applicant’s crimes came to light she had taken more than $3 million.
When there was a failure to reimburse funds to a client from the firm’s trust account it came to the attention of the Queensland Law Society.[21]
[21] G-Documents, G5, 48.
When the applicant found out that the Law Society was investigating, she panicked and decided to kill herself. She notified her son by text of her intentions. He immediately commenced a search for her and found her in a motel on the Gold Coast. Her plan had been to take an overdose of sleeping pills, but ultimately she lacked the courage to go through with it. Her son took her to the hospital where she stayed for more than a month.[22]
[22] Applicant’s Statement, [59]-[60]; Statutory Declaration of YH, [35]-[38].
When she was discharged, she spoke to the police. She was charged with Fraud – Dishonestly gaining a benefit/advantage by an employee of at least $100,000.
Following an investigation, the Queensland Law Society froze her employer’s trust account and Mr Lee, the principal of the firm, was forced to close down his business. The clients whose funds had been taken were reimbursed by the Fidelity Fund administered by the Queensland Law Society and through insurance held by Mr Lee.[23]
[23] G-Documents, G5, 48.
The applicant was granted bail and stayed in the community until she pleaded guilty on 24 October 2023. She was sentenced to nine years imprisonment. She will be eligible to apply for parole from 23 April 2026.
Her behaviour and conduct in prison has been good.
The medical experts all agree that the applicant has a gambling addiction (also described as a Severe Gambling Disorder).[24] It may be exacerbated during episodes of depression from which she also suffers. One of the experts speculates that the applicant may have bipolar disorder.[25]
[24] Report of Dr James Freeman, [11.3]-[11.4]; Report of Peter Jordan, [10.3], Exhibit A1, AE17, 109-112 (‘Letter from Dr Trevor Lotz’), [3].
[25] Report of Peter Jordan, [10.1],
The applicant’s mother and sister currently live in South Korea. Her mother has dementia and lives with the applicant’s sister. Her sister wrote the applicant a letter of support when she was being sentenced in relation to the 2020 fraud.[26] However, that is the last positive communication between the siblings and I am satisfied that the applicant is now is estranged from her sister.
[26] Exhibit R1, TB2,10.
I make other factual findings in the course of considering the relevant considerations
CONSIDERATION
Primary considerations
Protection of the Australian Community

When examining this consideration, I am required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, 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.
In the present case the offending did not involve any physical harm to the victims. The impact was purely financial. It is however a form of criminal activity that the Australian community should be protected from.
When analysing this consideration I need to give specific consideration to:
(a)The nature and seriousness of the applicant's conduct to date; and
(b)The risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
In considering the nature and seriousness of the conduct there are factors to which I must have regard specified in paragraphs 8.1.1(1)(a)-(h) of the Direction
While the crimes do not fall within any of the categories identified as very serious or serious in paragraphs (a) and (b), the fact that they have not been specifically identified as crimes of a kind falling within those categories does not mean that they cannot be categorised as such. I am satisfied that fraud on the scale engaged in by the applicant where she twice took sums held by her employer - on the first occasion involving close to $20,000 and on the second occasion more than $3 million - should be classified as serious.
The conduct resulted in a custodial head sentence of nine years. The length of the sentence indicates the seriousness of the conduct. The relatively short non-parole period does not diminish the appropriateness of that classification.
There was also an impact on the applicant’s victims. First, the IGA store who she worked for lost close to $18,000 in takings. It is unclear from the evidence whether this amount was ever paid back. More than $17,000 was still outstanding when the applicant was sentenced on November 2013.[27] The offending dealt with in the 2023 convictions had the effect that her employer’s business was shut down. The impact on her employer Mr Lee was an enduring one. Further, the offending resulted in significant costs being shifted to others through the Queensland Law Society Fidelity Fund and her employer’s insurance. The fact that the costs of the theft are disbursed does not mean that the costs imposed are not real. The applicant also borrowed money from friends and lost it at the gambling tables. It is unclear whether this money was ever paid back.
[27] G4 p43
While the applicant’s offending in 2012 can be classified as a lapse of judgment in a confined period due to a gambling addiction, her conduct between 2020 and 2022 involved her engaging in dishonest conduct on multiple occasions using a variety of techniques to channel funds into her own accounts or the accounts of friends of hers. The offending between 2020 and 2022 was the third occasion on which the applicant was involved in gambling related offending over twenty years. The trend in the offending involved increasing seriousness.
The cumulative effect of repeated offending is that millions of dollars has been stolen from innocent people and lost to casinos.
The applicant provided false or misleading information to the Department (factor (g)) on her incoming passenger card when she failed to disclose her previous criminal offending when returning to Australia in 2018. At the time the applicant had been convicted of a number of offences but had not served a custodial sentence. I am prepared to accept her explanation that she did not think it was necessary to disclose that conviction when she filled out the incoming passenger card.
The applicant has not re-offended since being made aware about the consequences of any further offending (factor (h)). There is no relevant offending in another country (factor (i)).
Considering all of the identified factors, the applicant’s conduct involves serious financial crimes.
The risk should the non-citizen commit further offences
In considering the need to protect the Australian community I must have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. The applicant's criminality is very close to conduct of that kind. Her fraud is on such a scale that if a fraud of that scale were perpetrated on a single individual it could be ruinous. As the applicant is not in her right mind when she is in the grip of her addiction, she could easily persuade herself that she is not harming an individual when committing a fraud - just borrowing money that she will pay back. Consequently, even though she appears to be a good person, when she is in the grip of her addiction, she is capable of destroying the financial security of a community member if access is given to large sums of money.
In assessing the risk to the community, I have had regard to the factors identified in paragraph 8.1.2 of the Direction.
The Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In considering this issue I must have regard to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the likelihood of the non-citizen engaging in further criminal conduct, taking into account the applicant's risk of reoffending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence. My analysis is as follows.
Nature of the harm from further criminal conduct
The harm to others should the applicant engage in further conduct of a criminal or serious nature consists of being deprived of large sums of money by deception or abuse of trust.
Likelihood of further criminal conduct
In the absence of specific steps to ameliorate the risks, I am satisfied that the risk of the applicant engaging in further criminal or serious conduct should be assessed as at least moderate.
The applicant’s medical evidence confirms the difficulty in quantifying the risk in this case. The applicant is in almost every respect a law-abiding person. When not suffering an episode ofgambling addiction there is no risk that she will commit an offence of any kind. However, as the medical evidence confirms, when she is in the grip of her addiction, she develops cognitive distortions which allow her to believe that if she continues to gamble it will solve financial problems for her.[28] When suffering this delusion, she believes that if she can obtain access to funds then this will allow her to win back what she owes and allow her to pay back all of her debts. When she is in this phase, if she has access to funds – money at work, loans from friends or her employer’s trust account – she will access it and gamble it away. That has been her pattern in the past and as her psychologist Dr Freeman acknowledged, her past behaviour may well be a guide to her future behaviour. Because the process is not rational and likely has a genetic link, she is prone to relapse.[29]
[28] Report of Dr James Freeman, [11.3].
[29] Ibid, [14.4].
Accordingly, to have any confidence that the applicant will not succumb again to her natural disposition, protective factors need to be considered closely. The fact that she has spent time in the community without offending since her last offence is not significant in assessing the risk if she is released again. Her pattern has been significant periods of good behaviour followed by a relapse.
I do not regard the fact that the applicant is inherently a good person (which I accept that she is) or has a good family or feels shame for what she has done in the past as protective. All of those matters were present in 2012, and she still succumbed to her addiction. She offended on a much larger scale in 2020.
Of more significance is the fact that her son is more focussed on her problem and is aware of the nature of his mother’s vulnerability. He has given evidence that if his mother is released into the community that he will do the following as a minimum to reduce the likelihood of his mother re-offending:
(a) Arrange a rental accommodation for her, close to him and his wife. For the last decade the applicant has lived on the Gold Coast while her son and his wife lived in Brisbane;
(b) Provide financial support so that she can fully focus on her recovery (as well as mitigate any residual risk of her re-offending in the future);
(c) Support her to focus her life on community engagement, through volunteering and attending church services;
(d) Arrange and monitor ongoing her gambling addiction treatment with a psychiatrist, including counselling and medication as prescribed by a doctor;
(e) Seek support from Gambling Help Service (GHS) provided by Relationships Australia for counselling, support groups and gambling addiction recovery programs;
(f) Check in with her multiple times a week and make sure she is following her treatment plans.[30]
[30] Statutory Declaration of YH, [48].
The plan is protective in that the applicant will not re-enter the workforce and will not need to have access to cash.
The biggest change that this plan offers is that the applicant’s close relatives now have a more accurate appreciation of the nature the applicant’s problem and will be more vigilant about the risk of relapse. This means the plan has good prospects of making a difference. How big a difference again is hard to gauge, but I am satisfied that the family’s close supervision of the applicant and plans following release reduce the risk of relapse to low.
It is also possible that treatment options accessed on release may be more effective than those employed after her offending in 2012 but that is uncertain. The applicant believes that they will be. She states that:
I believe the difference this time is that I now accept that I am sick and that I need professional help. Previously I never fully accepted that it was a sickness or medical condition, and thought I could control myself…I know now that it is not possible for me to just stop gambling by myself without ongoing professional support.[31]
[31] Applicant’s Statement, [70].
I am fortified in my conclusion that the risk of reoffending is low by the fact that the applicant will, if she is released into the community, be on parole for an extended period. If she is released next year, she can expect close supervision for the following six and a half years. The conditions are likely to include controls on where she lives. This will enhance her family’s capacity to supervise her behaviour.
Despite this assessment the protection of the Australian community consideration still weighs against the applicant.
Family violence committed by the non-citizen
The applicant has not committed family violence. This factor is neutral.
Strength, Nature and Duration of Ties to Australia
The applicant’s closest bond with anyone in Australia is with her son. She raised him alone and he has been her only blood relative in Australia since her sister left Australia around 2006.
They lived together on the Gold Coast from 2001 until he moved to Brisbane in 2013 to manage his financial services businesses. Contact from that point between them was regular but not of sufficient depth for YH to pick up that his mother’s gambling addiction had relapsed, until he received a message from her that she was going to kill herself.[32]
[32] Statutory Declaration of YH, [28]-[34].
The applicant’s criminal offending and subsequent suicidality caused a significant deterioration in the relationship. YH performed admirably after his mother first texted him that she was going to kill herself – searching for and finding her and ensuring that she had proper care. He also ensured that she was legally represented in relation to the criminal charges. He clearly believes that his role as the applicant’s only son comes with significant responsibilities, and he takes these seriously.
However, the applicant’s criminal behaviour has had a deleterious effect on the relationship. Since the applicant was sentenced in 2023, her son has not spoken to her either in person or by telephone. Prior to the hearing he had not seen her since she was sentenced. When reviewing the material prior to the hearing this fact suggested to me that the emotional bond between the applicant and her son was not that close and not that significant. Events at the hearing altered significantly my assessment in that regard.
In his evidence to the Tribunal YH explained that he justified his shutting down of the relationship with his mother on the basis that it was in the interests of his business and the employees and clients who depended on his good reputation for their livelihood and confidence. However, when he saw his mother in the hearing room, he realised that this was not the real reason for his behaviour. He accepted that he was still angry with his mother and had not forgiven her for what she had done. He said that as soon as he saw her in the hearing room he forgave her. Anyone who witnessed this evidence being given could not doubt its sincerity.
I am satisfied that the applicant has a very close bond with her son and removing the applicant to South Korea would be a significant emotional blow to both of them.
The applicant also has close ties with her son’s wife NK. NK was born in Japan and has no blood relatives in Australia. Since she has known YH, NK has built a close relationship with the applicant which she describes as respectful and caring. She notes that because her own mother is in Japan ‘my mother-in-law relationship … is even more important to me’.[33] While the applicant has been in prison, NK has spoken to her on the phone regularly and shared messages between the applicant and her son.
[33] Exhibit A1, AE3, 16-23 (‘Statutory Declaration of NK’), [26].
The applicant also has ties to a Korean church on the Gold Coast called ‘All Nation Church’. The applicant was raised a Christian and continues to practise her faith. She is known to the pastor and parishioners in the church and is involved in Church activities. The applicant may need to find another church if she moves to Brisbane.
The applicant was married to a man called Leith Hudson. She married him around 2005. He was living upstairs in the same rental apartments as the applicant at the time. He sponsored her partner visa and she received permanent residency on 5 January 2009. She remains married to Leith but they have not been in a relationship since around 2011.[34]
[34] Applicant’s Statement, [20]-[22].
Given the closeness of the relationship between the applicant and her son and his wife, there are powerful bonds that will be diminished if the applicant is returned to South Korea. I am satisfied that this consideration weighs strongly in favour of setting aside the visa cancellation.
Best interests of minor children in Australia
There are no minor children to consider. This consideration is neutral.
Expectations of the Australian Community
As the Direction makes clear, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia. As a person who has committed stolen money and fraudulently obtained very significant sums of money the applicant has not met this expectation.
The Direction goes on to say that non-revocation of visa cancellation may be appropriate simply because the nature of the offences are such that the Australian community would expect that the person should not continue to hold a visa. The nature of the applicant's crimes do not fall into that category.
These expectations apply regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.
This consideration weighs against revoking the cancellation of the applicant's visa. The applicant's breaches of the law are serious and the expectation of the community is that she would not be allowed to stay in Australia.
OTHER CONSIDERATIONS
Legal consequences of the decision
This consideration is neutral.
Extent of Impediments if Removed
I am also obliged to consider the extent of any impediments that the applicant may face if removed from Australia to South Korea, in establishing herself and maintaining basic living standards, 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 her in South Korea.
The applicant is a citizen of South Korea. There are no substantial language or cultural barriers which the applicant will experience living there. She lived there until she was 37 years old and so she is familiar with the society and how it functions. She knows the language. The applicant is in her 60s and enjoys good physical health. She requires some treatment in relation to her depressive symptoms but there is no reason to think that the necessary treatment would not be available. As casino gambling is illegal in South Korea, it is unlikely the applicant will succumb to her gambling addiction if she is returned to South Korea.
The applicant may struggle to find work in South Korea given her age. She may get some state support in the form of a pension. I am satisfied that her son considers that he is responsible for his mother’s welfare and he will ensure that she is looked after if she is returned to South Korea.
The social support available to the applicant if she is returned to South Korea is minimal. Her mother lives with the applicant’s sister. The applicant’s sister remains extremely angry with the applicant as a consequence of her criminal offending and I am satisfied that it is appropriate to proceed on the basis that the applicant’s sister will not speak to her or provide any social support if she is returned to South Korea. While some access to her mother may be facilitated by her sister, I note that the applicant’s mother has dementia and is unlikely to be a source of social support.
I am satisfied that the applicant will be able to maintain basic living standards but will have difficulty establishing herself socially in South Korea.
This consideration weighs slightly in favour of revoking the cancellation decision.
Impact on Australian business interests
I must consider any impact on Australian business interests if the non-citizen is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The applicant has identified potential harm to her son’s business as a result of the emotional impact on him if she is deported. The son runs a substantial advisory business and has recently acquired a training business for holders of Australian Financial Services Licences. The businesses are substantial. Between them they employ 70 people and have a turnover of over $5 million.[35]
[35] Exhibit R2, AE2-1, 1.

Given the closeness of the bond between the applicant and her son I cannot rule out such an effect. However, the evidence that the deportation will impact on the business is not strong. YH has been very successful in business despite the traumatic events dating back to 2012. I consider it unlikely that if the applicant is deported that there will be an impact on the YH’s businesses.
This consideration is neutral.
Other considerations
The applicant emphasised that her son and his wife were hoping to have children and the consequences for them and any children if the applicant is deported. It was suggested that this should be considered under the strength, nature and duration of ties to Australia consideration. In my assessment, the possibility of grandchildren is too contingent to be treated as an existing tie to Australia. It can however be assessed as another consideration.
The evidence establishes that NK and YH have plans to have children. This raises the possibility that if the applicant is deported, any children NK and YH are able to have will be deprived of close contact with a grandmother and NK will be deprived of the only relative in Australia (apart from YH) who can provide her with support. It is difficult to know how much weight to give this possibility. It is certainly not a current tie to Australia and may never turn into one. However, I accept that affirming the visa cancelation will foreclose these possibilities. Some weight should be attributed to the fact that the applicant and her family’s best hope of her playing a significant role in the lives of any future children depends upon her remaining in Australia. This should be given some weight in favour of the applicant being allowed to stay in Australia.
CONCLUSION
Informed by the principles in paragraph 5.2 of the Direction, I have taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision and all the other considerations that the applicant has advanced.
The following considerations weigh in favour of a decision to affirm the cancellation of the visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The expectations of the Australian community.
The following considerations weigh in favour of setting aside the cancellation:
(a)The strength, nature and duration of the applicant's ties to Australia;
(b)Impediments the applicant may face if returned to South Korea.
The family violence consideration and the impact on Australian business interests considerations are all neutral.
The possibility of grandchildren and the role the applicant could play in her son’s family in the future if she remains in Australia is also a consideration favouring slightly a decision to revoke the cancellation.
In circumstances where:
(a)the applicant’s ties to the Australian community weigh strongly in favour of revoking the cancellation;
(b)she faces impediments relating to social integration in South Korea; and
(c)the possibility of the applicant playing a positive role as grandmother and mother-in-law is foreclosed by her deportation;
I am persuaded that there is another reason to revoke the cancellation. I am conscious that two primary considerations pull in the other direction and the matter is finely balanced, but in my assessment the close supervision of the family combined with parole conditions reduces the risk of re-offending very substantially and that tips the balance in favour of a revocation of the cancellation.
The decision under review is set aside and I substitute a decision revoking the cancellation of the applicant’s visa.
Dates of hearing:   31 July and 1 August 2025
Solicitor for the applicant:  Victoria Lenton
Solicitor for the respondent:   Sparke Helmore Lawyers

Exhibit ID	Description
G	G Documents (G1 to G17, 116)
A1	Applicant’s additional evidence bundle (AE1-AE21)
R1	Respondent’s tender bundle (TB1 to TB3)
R2	Applicant’s additional evidence bundle part 2 (AE2-1 to AE2-9)