Kim and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 239
•18 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 239
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/34
GENERAL ADMINISTRATIVE DIVISION ) Re Geum Su Kim Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Deputy President J Block Date18 March 2005
PlaceSydney
Decision The decision under review is affirmed
[Sgd] Deputy President J Block
CATCHWORDS
IMMIGRATION – application for a skills visa – visa refused on basis that Applicant is not of good character – conceded that Applicant does not pass character test - Applicant first arrived in Australia on a visitor visa under name “Kuem Soo Kim” – Applicant overstayed visa and remained unlawfully in Australia for almost four years – Applicant worked illegally in Australia - Applicant was detained and deported – Applicant incurred debt to Commonwealth – A few months later the Applicant re-entered Australia on an electronic travel authority under a different spelling of his name - Applicant failed to declare personal details in visa applications that he had been deported, excluded from returning and had debts to Commonwealth – Applicant convicted of criminal offences while in Australia illegally – Applicant claimed that migration agent deliberately concealed important information in completing applications – discretion not exercised - decision under review is affirmed
Migration Act 1958 sections 234, 235, 501
Ministerial Direction 21
Cho and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 112
“SAAC" and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209
Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277,
Msumba and Department of Immigration and Multicultural and Indigenous Affairs [2000] AATA 87
Trienh and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1306
Copeland and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 144
Lachmaiya and Minister for Immigration and Multicultural and Indigenous Affairs (1994) 19 AAR 148
Susilo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 495
REASONS FOR DECISION
18 March 2005 Deputy President J Block PART A INTRODUCTION AND GENERAL
1. The decision under review is the refusal by a delegate of the Respondent of an application by the Applicant for the grant of a skilled (Australian sponsored overseas student) subclass 881 visa (referred to, in brief, in these reasons as the “skilled visa application”). That application was refused on the grounds that the Applicant did not satisfy the character test set out in section 501 of the Migration Act 1958 (“the Act”).
2. The Applicant was represented by Mr C. Levingston, a solicitor, while the Respondent was represented by Mr A. Cox of Phillips Fox, solicitors.
3. The Tribunal had before it the G documents, lodged in accordance with section 500G of the Act, together with exhibits as follows:
·Exhibit A1 is a statutory declaration by the Applicant which does not bear a date of execution but is date stamped in the Tribunal on 10 February 2005.
·Exhibit A2 is a statutory declaration by Ms Bong Soon Yoo dated 4 February 2004; Ms Bong Soon Yoo is the Applicant’s wife and she is referred to in these reasons, in the interests of brevity as “the Wife” or “the Applicant’s Wife” or in a manner which is similar.
4. The Respondent’s Statement of Facts and Contentions, dated 14 February 2005, contains the usual helpful chronology of relevant events, set out under the head of ‘Facts’ in clauses 2 – 13; I include in these reasons clauses 2 – 13 (inclusive) and in addition clauses 25 – 29 (inclusive) under the head of “Breaches of Criminal Law” and also clause 30 under the head of “General Criminal Conduct”:
“2The applicant first arrived in Australia under the name Keum Soo Kim on 31 August 1996 as the holder of a visitor (subclass 676) visa.
3 He departed Australia on 14 September 1996.
4The applicant again travelled to Australia on 8 May 1998 as the holder of an electronic travel authority (short stay) (subclass 976). While in Australia, he was granted a subclass 686 visitor visa for further stay on 6 August 1998.
5The applicant's visitor visa expired on 8 November 1998. The applicant did not depart Australia at that time and did not apply for another visa. He remained in Australia as an unlawful non-citizen. He engaged in employment while he was an unlawful non-citizen.
6The applicant was located by compliance officers at his place of employment on 18 September 2002, almost four years after his last visa had ceased.
7The applicant was detained and held in Villawood Detention Centre. He applied for, and was refused, a bridging visa on 24 September 2002. He remained in Villawood Detention Centre until his removal from Australia on 17 October 2002. He incurred a debt of $2649.63 to the Australian Government.
8On 1 February 2003, the applicant re-entered Australia as the holder of an electronic travel authority (short stay) (subclass 976). He travelled under the name Geum Su Kim.
9On 24 April 2003, the applicant was granted an extension to remain in Australia as a visitor until 22 July 2003. On his application, he failed to declare that:
9.1He had visited and lived outside his country of usual residence for more than three consecutive months. [Question #12]
9.2 He had been previously removed from Australia. [Question #16]
9.3 He was excluded from returning to Australia. [Question #16]
9.4He had outstanding debts to the Australian government. [Question #16]
This is the application referred to in contention #3 of the Applicant's Statement of Facts and Contentions. The document is entitled "Application for further stay as a visitor". As correctly stated by the Applicant, that document is not contained in the section 501G documents provided to the Applicant and then lodged with the Tribunal. For the information of the Tribunal, the document is provided as Appendix #1 to this statement.
10On 29 May 2003, the applicant lodged an application for a skilled - Australian sponsored overseas student (subclass 881) visa. That application is the subject of the present review. In the application, the applicant failed to declare that:
10.1He had previously been refused an entry permit or visa in Australia. [Question #48].
10.2 He had been previously removed from Australia. [Question #47]
10.3 He was excluded from returning to Australia. [Question #47]
10.4He had outstanding debts to the Australian government. [Question #47]
11.On 25 November 2003, the applicant was convicted in the Downing Centre Local Court of [at G4]:
11.1Obtain/renew drivers licence by false statement. He was fined $1000 for that offence.
11.2Operate account with cash dealer without disclosing all names (2 charges). The applicant was sentence to 50 hours of community service for these convictions.
12On 5 February 2004, the applicant's bridging visa was cancelled under section 109 of the Migration Act 1958. He was subsequently refused another sort of bridging visa on 9 February 2004.
13On 4 November 2004, the applicant was sent a notice of intention to refuse the visa application on character grounds [G6]. The applicant's agent responded in a letter dated 16 November 2004. [G5]
…
25The Respondent contends that the applicant continued to remain unlawfully in Australia after 8 November 1998, when his visa ceased. During that time, the applicant also worked unlawfully.
25.1The applicant remained in Australia for nearly four years after his visa ceased. He was apprehended by compliance officers at his workplace on 18 September 2002.
25.2The applicant only departed Australia after being located by compliance officers.
25.3The applicant remained in Villawood Detention Centre for almost one month before leaving the country. He incurred a debt of $2649.63 to the Australian Government. He did not pay this debt until he had returned to Australia and been here for some time.
26 The Respondent contends that the applicant was removed from Australia.
26.1After remaining unlawfully in Australia for almost four years, the applicant was located by compliance officers at his workplace on 18 September 2002.
26.2The applicant remained in Villawood Detention Centre for close to a month before being deported.
27The Respondent contends that the applicant provided misleading statements to Australian immigration officials in order to obtain visas to enter and remain in Australia.
27.1The applicant entered Australia as the holder of an Electronic travel authority on 1 February 2004. When obtaining this travel authority, he used a different name than he had previously used when travelling to Australia. This misled immigration officials, and meant that his previous immigration history in Australia was not discovered before he travelled to Australia.
27.2The applicant was granted a visitor visa on 24 April 2003 in order to extend his stay. On the application form, he did not declare that he had visited and lived outside his country of usual residence for more than three consecutive months, that he was previously removed from Australia, that he was excluded from returning to Australia and that he had outstanding debts to the Australian government.
27.3In the application for the subclass 881 visa, which is presently under review, the applicant did not declare that he had previously been refused an entry permit or visa in Australia, that he had previously been removed from Australia, that he was excluded from returning to Australia and that he had outstanding debts to the Australian government.
27.4The applicant misled immigration officials in order to obtain a number of visas. He did not declare his previous immigration history, and used a different name so that immigration officials would not discover his immigration history.
28The Respondent contends that, given the preceding breaches of immigration law, the applicant does not pass the character test in subparagraph 501(6)(c)(ii) of the Act.
29It is noted that the applicant concedes that he did engage in a "…gross deceit capable of enlivening character concerns of 'general conduct'…" in his statement of facts and contentions.
General criminal conduct
30.In addition, the Respondent contends that the applicant's past and present criminal conduct indicates that he is not a person of good character, and so does not pass the character test in subparagraph 501(6)(c)(i) of the Act.
30.1 On 25 November 2003, the applicant was convicted in the Downing Centre Local Court of one count of obtain/renew drivers licence by false statement to which he received a fine of $1,000.
30.2 Also on 25 November 2003, the applicant was convicted on two charges of operate account with cash dealer without disclosing all names. On both charges, he was sentenced to undertake 50 hours of community service
30.3 While these are not serious crimes, which do not constitute a substantial criminal record under subsection 501(7), the Respondent contends that they indicate that the applicant is not of good character. They also indicate that the applicant has been willing to engage in the conduct that is of a deceptive nature to other organisations in the Australian community as well as the Minister's Department.”
5. The Respondent’s Statement of Facts and Contentions includes an attachment and being a form 601 (application for further stay as a visitor) by the Applicant; (that application is referred to in these reasons as the “601 application”). The questions and answers in respect of question 16 contained in the 601 application read as follows:
“16 Have you, or any children included in this application ever:
·been convicted of a crime or offence in any country (including any conviction which is now removed from official records)? No Yes
·been charged with any offence that is currently awaiting legal action? No Yes
·been acquitted of any criminal offence or other offence on the grounds of mental illness, insanity or unsoundness of mind? No Yes
·been removed or deported from any country (including Australia)? No Yes
·left any country to avoid being removed or deported? No Yes
·been excluded from or asked to leave any country (including Australia)? No Yes
·committed, or been involved in the commission or war crimes or crimes against humanity or human rights? No Yes
·been involved in any activities that would represent a risk to Australian national security? No Yes
·had any outstanding debts to the Australian Government or any public authority in Australia? No Yes
·been involved in any activity, or been convicted of any offence, relating to the illegal movement of people to any country (including Australia)? No Yes
·served in a military force or state sponsored/private militia undergone any military/paramilitary training, or been trained in weapons/explosives use (however described)? No Yes”
6. With respect to the final question under question 16 of the 601 application, details of the military service were disclosed in the space provided.
7. If only as a matter of balance I include the Contentions (clauses 1 -11) contained in the Applicant’s Statement of Facts and Contentions dated 10 February 2005:
“1. It is contended that the decision to exercise powers under Section 501(1) of the Migration Act 1958 should not be affirmed.
2.The cumulative conduct of the Applicant for the visa with respect to the circumstances of his re-entry to Australia on 1 February 2003 was not a breach of the Migration Act and was otherwise permissible in terms of Australia law.
3.The Applicants conduct in applying for an extension to his ETA which was made on 24 April 2003 relied upon advice given to him by Mr Philip Oh the Director of Australian Visa Consultation Service wherein the Applicant disclosed to Mr Oh the facts and circumstances of his previous entry and stay and his subsequent re-entry to Australia. The failure to disclose material facts in that application as identified in paragraph 19 of page 5 of document G1 was not authorised by the Applicant or aided and abetted by the Applicant other than by the Applicant signing the relevant form and otherwise relying upon his registered Migration Agent . The document in questions does not from part of the documentation before the Tribunal.
4.The Application made on 29 May 2003 contains multiple errors by way of act and omissio not authorised by the Applicant but arose in circumstances where the Applicant contends that his Agent Mr Oh was either incompetent or negligent in circumstances where by reason of the making of the relevant application material facts were either misrepresented or not disclosed by the Agent where the Applicant did not authorise the making of such statements and did not aid and abet the Agent other than by signing the relevant form and otherwise relying on his Agent.
5.The Applicant contends that the application made on 29 May 2003 incorrectly nominates the Applicant as the principal Applicant for the visa where the Applicant was unable to meet threshold criterion with respect to the making of an application in this class.
6.It is contended that the conduct of the Agent in placing the Applicant into the position of principal Applicant where the Applicant did not hold a student visa at the time of the making of the application renders the application for the visa subclass 881 invalid.
7.It is contended that the fact of the apparent invalidity of the relevant application gives rise to an irresistible inference that the Agent was either incompetent or negligent and that under the circumstances the Applicants reliance on the Agent was misplaced.
8.The Applicant contends that not withstanding the making of multiple false statements on the applications for an extension to a visa on 24 April 2003 and an application for a skilled subclass 881 visa made on 29 May 2003 did not involve a breach of the provisions of section 234 of the Migration Act in that the Applicant did not make or cause to be made or deliver or cause to be delivered either a document or a statement that to his knowledge was false or misleading in a material particular.
9.The Applicant contends that the legal fact of his subsequent conviction on 25 November 2003 with respect to the matters set out in the Police criminal history at document G4 at folio 42 arose after the lodgement of the application and in circumstances where the applicant having resort to the identity utilised on entry on 1 February 2003 inadvertently breached provisions of the criminal law in circumstances although serious was not “very serious” in accordance with the conduct identified in Direction number 21.
10.The Applicant has no other adverse matters and the Applicant is aware of his continuing obligations to be of good character and recognises and accepts the continuing supervision of the Migration Act 1958 which it is contended mitigates the “risk of recidivism” as identified in the primary considerations of the protection of the Australia community.
11.The Applicant contends that the expectations of the Australian Community is that persons providing Immigration assistances in a statutory regime under the provisions of the Migration Act 1958 would in turn give rise to the Applicants relying upon such advice which although misplaced, by virtue of the Agents negligence or incompetence would not cause, in the absence of serious misconduct on the part of the Applicant for that application to be refused on character grounds.”
8. Evidence was given by both the Applicant and the Applicant’s Wife; in each case evidence was given in person and with the aid of an interpreter in the Korean language.
9. In addition, oral evidence was given by Mr Philip Oh who is a migration agent and who is referred to in these reasons, in the interests of brevity, as “Oh”. This case was heard during the course of three days and being 15 February 2005 (“first hearing day), 18 February 2005 (“second hearing day”) and 8 March 2005 (“third hearing day”). On the first hearing day and at the commencement of the hearing, Mr Levingston sought leave to serve summonses on Oh, calling upon him to appear and give evidence and also to produce documents on the second hearing day.
10. As to whether Oh’s evidence would be admissible (having regard to section 500(6H) of the Act) was the subject of some debate. It was decided that the Tribunal should hear his evidence, (Mr Cox reserving all of his client’s rights in this regard), on the basis that a decision could be made at a later stage as to the extent of its admissibility or the admissibility of any part of it. Oh’s evidence will be dealt with in Part C; the extent of its admissibility will be dealt with in Part F.
PART B THE EVIDENCE OF THE APPLICANT
11. Exhibit A1 reads as follows:
“1. I was born in Korea on 10 September 1961
2. I am a citizen of the Republic of South Korea.
3. I am married to Bong Soon Yoo date of birth 15 August 1964.
4. My wife and I were married on 12 November 1984.
5.On or about 8 May 1998 I first entered Australia on a Republic of South Korea passport issued in the name of Kim Keum Soo date of birth 10 September 1961.
6.At the time of my entry I had permission to remain in Australia for a period of 3 months. I subsequently became an unlawful non-citizen in that I ceased to hold a valid entry permit.
7.On or about 17 September 2002 I was arrested by officers of the Department of Immigration and held at the Immigration Detention Centre Villawood.
8.On or about 17 October 2002 I was removed from Australia. At the time of my departure I travelled on a Republic of South Korea passport in the name of Kim Keum Soo date of birth 10 September 1961.
9.In the period from my first entry on or about 8 May 1998 up until the entry of my wife on 21 March 1999 with my daughter Kim Ha Na. date of birth 19 July 1985 and up until my arrest by Immigration my wife had urged me to not remain illegally in Australia but I did nothing.
10.The relationship between myself and my wife is very close an when my wife came to Australia in 1999 we had been separated for about 10 months. I found this separation very hard and I was very happy to see her and the children and to live together as a family. I know that I had to have a visa but I did nothing because I hoped that everything would work out.
11.When I left Australia on 17 October 2002 I did so because I had no other choice. When I arrived back in Korea I had a number of conversations with my wife where she urged me not to do anything wrong. I wanted to come back to Australia to be with my family and I was aware that I could legally ask the Korean passport office to issue me with a new passport in my name but using a different spelling. In Korea my birth name as registered is written in Korean language characters. When those characters are transcribed into English the family name Kim will stay the same but the names Geum Su can be spelt differently as Keum Soo with the pronunciation staying the same.
12.I approached the Korean passport office and told them that my family were in Australia and that I needed to have a travel document in the alternate spelling of my name in order to get a visa to travel back to Australia. I was subsequently issued with a passport in the name of Kim Keum Soo.
13.I then approached a travel agent and bought a return ticket for air travel to Australia and I was automatically issued a visa called an Electronic Travel Authority (ETA). I did not have to fill in any form to obtain that visa.
14.On or about 2 February 2003 I re-entered Australia as the holder of an ETA.
15.On or about 5 February 2003 I attended a meeting with a Migration Agent Mr Phillip Oh at a company called Australian Visa Consultation Services. I was present throughout the meeting with Mr Oh and my wife. I had read my wife’s statement and in particular paragraphs 14 to 23 inclusive and that statement is in accordance with my recollection.
16.When I signed the forms all I read were those parts of the forms surrounding the signature. I did not read the forms carefully and I can not say what information was on the forms when I signed them.
17.I accept that by signing the forms I had accepted responsibility for what the forms said. The decision not to read the forms was my decision and I must now accept responsibility for anything on the form which was not correct.
18.I am now aware that some correspondence from the character section in Brisbane was written to Mr Oh concerning my case and that a reply was made to that correspondence. I was not aware until very recently that there had been any request or reply and any reply which was made by Mr Oh was made without reference to me. I did not authorise Mr Oh to make any statements on my behalf.
19.A number of errors on the form 47SK have been shown to me and I now understand what was said on the form. I did not ask Philip Oh to make any false statements or to hold back information from Immigration. I accept responsibility for my own behaviour and I have had a long time to think about the consequences of my actions.
20.I deeply regret my deceit in re-entering Australia and should I ever be granted permanent residence I promise I will not behave in a dishonest or deceitful way ever again. As a consequence of my actions and the conduct of Oh I have now been in the Immigration Prison at Villawood since 5 February 2004.
21I now have debt to the Commonwealth which has been accruing at a daily rate since my detention. That debt will need to be paid before I can proceed to the grant of a permanent visa.”
12. The Applicant first came to Australia as a tourist in August 1996 and as Keum Su Kim (referred to in these reasons as “the original name”) in order to visit relatives.
13. The Applicant married his Wife in November 1984. They have two children Ha Na Kim (“Ha”) who is now over the age of 18 and Su Jin Park (“Su”) who was born on 12 September 1987, and who thus has not as yet obtained the age of 18 years. Su is not the biological daughter of the Applicant and his Wife. She is in fact the daughter of the Applicant’s older sister (“the sister”); for a number of years after the Applicant and his Wife (and Ha) came to Australia, Su stayed with the sister who provided fully for her maintenance. The Applicant said that he has formally adopted Su; no evidence in support of that contention was furnished to the Tribunal.
14. Although the Applicant gave evidence at some length, I do not think it necessary for me to deal with it in great detail, more particularly having regard to admissions made by him as referred to in clause 21.
15. The Applicant said that he has the equivalent of an HSC and that while at school he studied English as one of his subjects for a number of hours per week. After completing his schooling he went into the army in order to perform his compulsory military service obligations.
16. The Applicant became a welder after his military service. He did not obtain any formal qualifications and learned through practical experience. After 10 years as a welder he became a cement renderer; once again he learned through practical experience. He described himself as a cement renderer in his skills visa application.
17. The Applicant entered Australia on a tourist visa in May 1998, valid for three months, and when it expired he applied for an extension for a similar period and which was granted. After his tourist visa expired in November 1998, he remained in Australia illegally for approximately four years until he was forcibly removed from Australia. His Wife came to Australia with Ha, but not Su, in March 1999. (Ha was born on 19 July 1985 and the reference in this context to 19 July 2003 as her date of birth in answer to question 37 of the skills application was clearly simply a mistake). The Applicant paid for the relevant air tickets; it is plain enough that they came to Australia by arrangement with the Applicant. Su eventually came to Australia in April 2003.
18. The Applicant said that he brought his Wife and Ha to Australia “because of my children’s education”. He was asked whether he intended to remain in Australia in 1999. His answer was “no”. He answered “not really” in response to a question as to whether the family intended to remain in Australia in April 2003 when Su came to Australia.
19. When asked why he did not leave Australia when his tourist visa expired in 1998, the Applicant answered “I didn’t know that the tourist visa had expired; I only knew it when my wife came to Australia”. (That answer cannot be true bearing in mind that he had previously sought an extension of his original tourist visa).
20. The Applicant said, when asked why he did not leave Australia when his Wife arrived in March 1999, “I was just too happy to unite with my family. I was just procrastinating”.
And when asked what steps he took when his Wife told him that he was in Australia illegally he said “I didn’t take proper steps – I was just wishing that it would work out”.
He was then asked if it was fair to say that he knew the procedure having previously applied for an extension of his tourist visa; he answered “I thought that once the visa had died I did not know how to resurrect it”.
21. The Applicant was at work illegally in September 2002 when he was detained. He was taken to Villawood and forced to leave Australia in October 2002. He was asked who paid for the air ticket. He said that he had paid for a ticket but could not use it because his passport was not valid. He left, so he said, on an emergency passport.
22. The Applicant arrived in Korea (in Seoul) in October 2002; he returned to Australia on 1 February 2003 with new documents in the name of Kim Geum Su. He said that on his arrival in Seoul, he approached the Korean Department of Foreign Affairs and told them that he had been in Australia illegally and that he had been removed from Australia. He said that his family, however, was still in Australia. That Korean authority asked for evidence that this was so; his Wife was asked to provide evidence that she and the children were in Australia and did so. In consequence, according to the Applicant’s evidence, the Korean Department of Foreign Affairs provided him with a new passport and travel documents in his new name, and in effect aided his return to Australia. A travel agent obtained an electronic visa for him in his new name. So it was that within three months he was back in Australia with new documents in his new name assisted in all of this, so he said, by the Korean Department of Foreign Affairs. The Applicant said that he took all of these steps deliberately, and because he knew that in the original name he would not be able to obtain a visa. And he furthermore admitted that he thereafter concealed the fact that he had been removed from Australia.
23. Having returned to Australia as a tourist, the Applicant sought a further stay as a visitor. His application for a further stay is attached to the Respondent’s Statement of Facts and Contentions. That application was signed by him. The questions and answers in respect of questions 16 have been set out previously in these reasons.
24. The Applicant agreed that he signed the 601 form. However, he said that it was prepared by Oh and he signed it in Oh’s offices and without reading it. He said that he looked at it only where he had to sign it.
25. The Applicant said that he met Oh for the first time in February 2003 when he went to see Oh with his Wife. He repeated that he did not read the 601 application before signing it; he agreed however that he was responsible for its contents.
26. The Applicant’s attention was drawn to the declaration at clause 23:
“I declare that:
·The information I have given on this form is complete and correct
·I have not and will not work unless authorised.
·I do not intend to study.
·I have enough funds to meet all costs during my visit to Australia and for travel out of Australia.
·I have never had tuberculosis or any serious condition likely to endanger or be a cost to the Australian community.
·I have never been convicted of a crime or any offence in any country; I have not been charged with any offence that is awaiting legal action; I do not have an outstanding debt to the Australian government or any public authority in Australia; otherwise I attach details.”
27. The Applicant’s attention was again drawn to question 16 and the answers thereto. The Applicant said that although he accepted responsibility, Oh did not explain the form to him and that he left it to Oh to take care of it.
28. The Applicant said that he did recall the conversation with Oh in February 2003 at which his Wife was present. He said he went to see Oh because he had come back to Australia under a new name. He said that he wanted to inquire about study in Australia for his Wife and daughters.
29. The Applicant said that his Wife conversed with Oh about his illegal status. When asked whether he recalled the substance of that conversation he said “as I said before I inquired about legal status and my being in the detention centre. And I inquired about my wife’s status and daughter’s status. My English is only limited to working English. I can read English and I can write simple things”.
30. The application for the skills visa which was refused on character grounds is contained in the G documents at Gp21 – Gp41. In respect of that application, question 3 asked for his full names; he answered that his family name was Kim and that his given names were Geum Su. Question 7 asked for “other names you are, or have been known by”. That question was not answered, although the Applicant agreed that he had an obligation to provide that information. Question 47 and the answers to the questions contained in it are similar to those set out in respect of question 16 of the 601 application. The questions and answers in respect of questions 48 and 50 were completed as follows:
“48. Have you, or any other person included in this application, ever been refused an entry permit or visa in Australia? YES
Have you or any other person included in this application, ever had an entry permit or visa cancelled in Australia? NO
Are you, or any other person included in this application, waiting on a decision on any other visa application? NO
If you answered ‘Yes’ to any of the above questions, you must state who it applies to and give ALL relevant details.
You Bong Soons’ statement visa application was refused and consequently
remited (sic) back to DIMIA. DIMIA re-assessed my refused application and
Has been granted a student visa.
…
50.Have you/your spouse or any dependent family members (migrating with you or not) previously been to Australia, held or currently hold a visa for travel to Australia?
YES
Full nameGeum Su Kim
Purpose of stay in Australia Tourist
Date of arrival 24/04/2003
Date of departure
Visa number v 826 <571442E
Full nameBong Soon You
Purpose of stay in Australia Studying
Date of arrival 25/03/2003
Date of departure
Visa number v 826 <5591896S
Full nameSu Jin Park
Purpose of stay in Australia tourist
Date of arrival 17/04/2003
Date of departure
Visa number”
The skills visa contains a declaration similar to that contained in the 601 application.
31. In respect of the skills application itself the Applicant said that although he did sign it, he did not intend to sign it as the primary applicant.
32. Other evidence as to the skills visa application need not be dealt with in detail. It is plain enough that it was completed falsely. The Applicant’s case was that although he was responsible for the false answers, he relied on Oh.
33. Mr Levingston then went on to ask the Applicant questions about a letter from the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) dated 4 November 2004. The Applicant said that he did not see the letter. He said that on 4 November 2004 he was in Villawood, having been taken into detention in February 2004. The Applicant said that he did not ever, after 5 February 2004, have a meeting with Oh. He was asked whether he ever spoke to Oh, and his answer was “I spoke to a person working in his firm”.
34. The Applicant was asked how, if there was never any meeting and no conversation with Oh, he was able to seek Oh’s help. He said “I have spoken to him over the phone” but when he was asked whether after 4 November 2004 he had a conversation with Oh or anyone in his office in connection with a letter from DIMIA refusing the skills application on character grounds, he answered “I never met him and I never spoke to him”.
35. The following exchanges which then followed are taken (as are all quoted portions of the evidence) from my notes. I took careful notes during the hearing and while they may not exactly accord with the transcript there will not be any material difference. The exchanges in question are as follows:
“Is it your evidence that you never spoke to Oh or any of his employees after 5 November 2004?
Yes.
Did you ask your wife to do so after 5 November 2004?
My wife didn’t speak to Oh or anyone in his office.”
36. Mr Levingston went on to deal with two criminal convictions referred to at Gp42 as follows:
“Obtain / Renew Drivers Licence by False Statement
Operate Account with Cash Dealer without Disclosing all Names (2 charges)”
It is not necessary for me to deal with these convictions, and in respect of which he pleaded guilty, in any detail. Suffice it to say that in respect of the drivers licence, he made a false statement because his previous drivers licence was in his original name. He had to obtain a new licence in his new name and for this purpose had to complete forms and take a test.
37. The Applicant was asked whether he had also been charged with opening a bank account without disclosing prior names. His answer was (surprisingly) “No”. But it is clear enough that he did and for much the same reasons.
38. The Applicant said that he accepted responsibility for his criminal behaviour. He was asked how he felt about his breaches and he answered “I definitely regret my behaviour as to immigration law”. He went on to say that “I will not offend again”.
39. All of the preceding clauses of this Part B relate to the Applicant’s evidence in chief. What follows is his evidence in cross-examination. The Applicant confirmed that he knew that he was not allowed to come back to Australia after he was forced to return to Korea. He said that his Wife warned him not to do anything wrong but that he was missing her and his family.
40. In cross-examination it emerged in clear terms that the Applicant’s regret relates to the fact that he was found out. It was put to him that he and his family could have gone back to Korea and he answered that “in those days we closed everything and we came to Australia for the sake of the children’s education”.
He agreed that he knew that they had no right to do so.
41. The Applicant also agreed that he knew that he was coming back to Australia under a false name.
42. Considerable further cross-examination only reinforced the fact that the Applicant and his Wife came to Australia and stayed in Australia illegally and that they were well aware of the true situation.
43. It was put to the Applicant that he gave Oh the information as to his military service. It was put to him also that Oh would have asked him if he had been deported. He answered “he didn’t ask me. I told him my criminal history.”
PART C THE EVIDENCE OF OH
44. It may be noted that Oh was represented at the hearing on the second day by Mr G Lewis, a solicitor. I propose, for the reasons more fully dealt with in Part F, in this Part C to subdivide the evidence of Oh into his evidence in chief and, under a separate sub heading, his evidence in cross – examination.
evidence in chief
45. Oh said that he had read the Applicant’s Statement of Facts and Contentions and also the statements which are Exhibits A1 and A2.
46. Oh said that he first met the Applicant and his Wife together when they came in to “say hello” on or about 5 February 2003. Oh denied that at that meeting he was told that the Applicant had been in Australia previously and that he had been removed from Australia. Oh also denied that he had been told that the Applicant was indebted to the Commonwealth of Australia.
47. Oh agreed that he was asked to assist the Applicant with an extension to his electronic visitor’s visa. He said that he completed the 601 visa form; the handwriting contained is not his but rather the handwriting of one of his employees. In particular the answer to question 16 in the 601 application is not his own.
48. Oh said that the Applicant’s Wife had previously applied for a student visa which had been refused. He represented her in having the refusal reviewed by the Migration Review Tribunal (“MRT”) and where he was successful in having it set aside. He said that he discussed the future with her and in particular the possibility of skilled migration if she completed her studies. In February 2003, when the Applicant and his Wife came in to see him in his office in Pitt Street, Sydney, his office was preparing a skills assessment report for the Applicant’s Wife to be sent to Trade Recognition Australia; documents were being brought to him for this purpose. To lodge a skills visa application requires an assessment which can take about three months. In 2003, the Wife was studying business management.
49. To apply for a skills visa requires that all persons involved have a valid visa and it is for this reason in particular that Oh assisted the Applicant in respect of his 601 visa application.
50. Oh’s office prepared and lodged the 881 skills visa application. DIMIA sought information as to the relationship between the Applicant and his sponsor, who is his uncle.
51. In respect of a skills visa application, there is an English requirement; however, it is possible to pay a monetary amount in lieu of taking the English test. The Applicant chose the alternative for himself and his Wife and the relevant amount ($2400) was paid for each of them.
52. DIMIA asked for rectification to the answers to question 47 as regards convictions. He said that he told the Applicant and his Wife that they must tell him what they had not told him before; it was at about that time that he learned for the first time of the Applicant’s prior history. He warned them that the application might be refused but said that he would try to make as good a case as possible.
53. A letter of refusal of the skills application dated 4 November 2004 was received from DIMIA in Brisbane. The Wife was notified and she came in to his office. At that time she took all the files; this occurred in January 2005 when the Applicant was in detention. She said that she nevertheless desired Oh to continue to act. While the Applicant was in detention Oh acted in respect of a number of bridging visas. He said that a bridging visa can be applied for where an Applicant has a substantive visa.
54. Oh said that he received a reasonable fee for the skills visa application. He said that he acted without charge for the Applicant in respect of certain work performed for him.
55. Mr Levingston asked Oh categorically whether it was his evidence that he had no knowledge of the Applicant’s previous immigration history. He answered categorically “yes”. He said that he became aware of it only in July 2003. He said that after the Applicant went into detention in February 2004, the authorities made the connection between the Applicant’s real and his claimed identity.
56. Oh was asked when he had a conversation with the Applicant concerning his real immigration history. He answered that it occurred between 20 July 2003 and 26 August 2003.
57. Oh said that he sent a letter to DIMIA in Adelaide on 20 August 2003 in respect of question 28; that letter is not in the G documents.
58. Oh was referred to an email message sent by him in November 2004. It was put to him that the Applicant had said that he, Oh, did not contact him as to character concerns and that he, the Applicant, had not authorised any reply. Oh answered that the Wife asked him to reply.
cross-examination
59. Mr Cox commenced by asking Oh whether he remembered the meeting in his office concerning the skills visa application. He said he remembered it although not the exact date on which it took place.
60. The meeting was held in his offices, and the persons present were the Applicant, his Wife, Oh and Oh’s clerk Damien. The language used throughout by all of them was Korean.
61. Oh said categorically that “we ask every question”. He drew attention to the fact that in relation to question 48 in the skills visa application, the student visa refusal was disclosed even thought the refusal was reversed. He said that he asked the Applicant as to whether there were any problems.
62. Oh was asked what he said to the Applicant when he came in to sign the skills visa application. He answered that he could recall no conversation and that the Applicant came in and signed the form.
63. Oh is a presentable man whose English is fluent. He struck me as competent in his knowledge of immigration law. His evidence was in effect a denial that he was a party to any falsehoods, and I believe his evidence completely. (At a later stage and during submissions, Mr Levingston conceded that he was a good witness). His services to the Wife were clearly valued; he was successful, as I have said, on her behalf when the MRT reversed a study visa refusal. This is no doubt why he was instructed also in respect of the skills visa application.
64. For Oh to have been involved in dishonest conduct of the nature alleged would have been foolhardy in the extreme. It was never suggested that he was offered any remuneration or any inducement to do so. Oh said that he was paid a reasonable fee for his services, and there was no suggestion to the contrary by the Applicant or his Wife. It is my view that the Applicant and his Wife decided to attack Oh because they felt that they had somehow to shift the blame to Oh for their own dishonest conduct. The fact that such an attack might have serious repercussions for Oh’s career does not appear to have weighed with them. I need hardly say that conduct of this nature is to be deprecated in the strongest possible terms.
PART D THE EVIDENCE OF THE WIFE
65. The Wife confirmed that Exhibit A2 is true and correct; it reads as follows:
“1. I was born in Korea on 15 August 1964.
2. I am the wife of Kim Geum Su date of birth 10 September 1961.
3. I married my husband in Korea on 12 November 1984.
4. I first arrived in Australia on 21 March 1999 and at the time of my entry I held an Electronic Travel Authority (ETA) which permitted me to both enter and remain in Australia for a period of 3 months.
5.In about June 1999 I applied for a student visa and thereafter variously held student visas and bridging visas which were granted to me by the making of applications for further substantive visas.
6.At the time of my entry to Australia on 21 March 1999, my husband was in Australia but was no longer the holder of a valid visa. I believe that my husband had entered Australia on 8 May 1998 on an ETA issued in the name Kim Keum Soo, date of birth 10 September 1961; the ETA was to expire 3 months after his initial entry.
7.At the time of my entry to Australia I knew that my husband not holding a valid visa was a problem and I nagged him to do something, anything, to regularise his status. He offered lots of excuses why he could not leave Australia and he ended up doing nothing.
8.On 17 September 2002 my husband was arrested by Immigration and held at the Immigration Detention Centre at Villawood. My husband departed Australia on 17 October 2002 and returned to Korea using his Korean travel document in the name of Kim Keum Soo, date of birth 10 September 1961.
9.In the period between 17 October 2002 and the end of January 2003 I spoke to my husband and he told me he intended to return to Australia. I told him not to do anything illegal.
10.On 2 February 2003, my husband re-entered Australia using an ETA granted to him upon the purchase of an Airline ticket for travel from Korea to Australia issued in the name of Kim Geum Su, being the name appearing in a Korean passport bearing my husbands photograph and disclosing his date of birth as being 10 September 1961.
11.The name Kim Geum Su is an alternate English language transcription of the Korean language characters appearing on my husbands family census register. Thus Kim Guem Su and Kim Keum Soo are the same name but with different spelling. My husbands date and place birth remained.
12.When my husband returned to Australia on 2 February 2003 he had a visa which was valid for 3 months.
13.On 5 February 2003 both my husband and I had a meeting with Mr Philip Oh at Australian Visa Consultation Services at 602/379 Pitt Street Sydney.
14.At that meeting I had a conversation with Mr Philip Oh about my visa options and what I might do to obtain a permanent visa. During the course of that conversation we discussed my husbands immigration history at which time my husband was also present;
I said; when my husband was at Villawood he was held for 1 month and they bought his ticket and made him leave. My visa is due to expire in June and my daughter turns 18, what are my options?
He said; Tell me about your qualifications and experience, do you have any experience in hairdressing?
I said; Yes, but I haven’t got a license for it but I do have 6 or 7 years experience.
15.He then appeared to do some calculations and after a short time;
He said; I think you have enough points.
I said; Is my husbands immigration history going to be a problem.
He said; There is no problem. There are previous cases I have handled and there was no problem.
16.On or about 27 May 2003 my husband and I returned to 602/379 Pitt Street Sydney and Philip Oh handed to both myself and my husband what appeared to be a completed form 47SK and I have since been shown a photocopy of a form 47SK which bears my signature at paragraph 92 an the date 27 May 2003. My signature also appears at paragraph 97.
17. I have also been shown the balance of the form and I recognise my signature and that of my husband. I have been shown paragraph 47 of the form 47SK and the answers to the questions Have you, or any other person included in this application, ever; been removed or deported from any country (including Australia)? and Had any outstanding debts to the Australian Government or any other public authority in Australia? and I can see that the answer to each question is No.
18. The answer to that question should have been yes and if I had been aware that the answer on the form been incorrect I would not have signed it.
19. Further, I have been shown the answer to the question at paragraph 50 of the form 47SK which states as follows; Have you/your spouse or any dependant family members (migrating with you or not) previously been to Australia, held or currently hold a visa for travel to Australia. The answer to that question although disclosing my husbands entry to Australia on a tourist visa and apparently showing an incorrect date of entry does not disclose his previous entry to Australia on the name Kim Keum Soo. If I had been aware of that failure I would not have signed the form.
20. I have also been shown paragraph 5 of the form 47SK and I note that there is a provision for the recording of an alternate spelling of my husbands name. If I had been aware that my husbands alternate spelling of his name had not been shown on the form 47SK I would not have signed the form.
21. I accept responsibility for signing the form and for its contents. My failure to properly read the form and my conduct in simply signing the form where Philip Oh indicated on 27 May 2003 has permitted a false statement through both the making of a statement and a failure to make a statement. I had not intended to cause any false statement to be made to Immigration. I did not instruct Philip Oh nor did I hear my husband instruct Philip Oh to make any statement other than to tell the truth and answer each question on the form 47SK.
22. I am aware and I have been shown a letter dated 16 November 2004 sent by Philip Oh to the Department of Immigration, Character Assessment Unit and in particular the following words in relation to the false statements;
"Mr Kim' s failure to declare any of the above was done as a last ditch attempt to remain in Australia and not with an intentional contempt for the law. As an unlawful non-citizen, the options available to Mr Kim were seen by him as untenable and he omitted to reveal the nature of his circumstances in his dealing a with DIMIA so that, he though, his family may have an opportunity to remain here permanently. As flawed as this logic may in actuality be, Mr Kim was not making these decisions in the conventional sense of rational thought but more as an impetuous attempt to pursue his dream of a better life in Australia.”
23.As far as I am concerned the false statements made on the application form were made by Mr Philip Oh without the authority of either myself or my husband. There was no attempt as far as I was concerned to conceal anything from immigration as I knew that they would find out anyhow no matter what was left off the form. I did not authorise Philip Oh to leave anything off the forms and I do not know whether he did that deliberately or whether he simply made a mistake. I accept responsibility for the forms made in my name and I did not intend to deceive immigration.”
66. The Wife was asked to think about the time when the Applicant returned to Australia under his new identity and to tell the Tribunal whether she took him to meet “someone”. She said that she visited Oh “for the first time on 5 February 2003”. However, she then said that she had met him several times previously in connection with bridging visas, and moreover, he represented her successfully before the MRT in respect of the refusal of student visa application.
67. The Wife is currently studying business at a college in Sydney; she is in Australia on a bridging visa which will end 28 days after these proceedings have been disposed of.
68. The Wife entered Australia on 21 March 1999 on a tourist visa (an electronic travel authorisation). Before coming to Australia she worked in assembly at an electronics company in Korea. That employment endured from 1996 – 1999. Prior to that she said that she was a hairdresser and she also did massage.
69. After coming to Australia on her tourist visa, the Wife did two ESL (English as Second Language) courses and she also obtained a Diploma in IT.
70. She came to Australia with Ha. Her other daughter Su came to Australia in 2003. She said that Su is in their family register and the Korean authorities regard Su as the daughter of the Applicant and his Wife. (As I have indicated there is no evidence in support of this allegation before the Tribunal)
71. She was asked how she felt about the fact that when she came to Australia the Applicant was unlawfully in Australia. She said “I feel as if I have no hope”.
72. The Wife said that since May 2003, she has been waiting for a decision on her migration visa (presumably a reference to the skills visa application). She said that she worked previously in a Korean grocery shop but only in accordance with the hours permissible (20 hours per week).
73. Asked how the family have managed financially during all of this time and whilst they were living in Australia, she answered “that’s why I have got lots of debt”. She went on to say that they had brought some funds from the sale of property in Korea and that they lived on that for a while. The Applicant came back to Australia from Korea and started working again. He was detained a year ago in February 2004; she said that “I borrowed money in Australia and in Korea. I borrowed too much money”.
74. The Wife said that she told the Applicant not to come back to Australia under a false identity. She said that she was aware of Koreans living in Australia illegally. However, he did come back, and his return was facilitated by the documentation (electricity bills) she provided as required by the Department of Foreign Affairs in Korea. “He wanted to come back. He said he cannot be alone any longer”.
75. She said that the Applicant returned to Australia on 2 February 2003 and made his own way to their home in Lidcombe.
76. She said that on 2 February 2003, she and the Applicant visited Oh in order to obtain advice as regards permanent residence in Australia. They wanted to obtain residence despite the Applicant’s previous record. She said that there was a meeting at which Korean was spoken and there were several members of Oh’s staff present but she did not remember the names of any of them.
77. The Wife said that she told Oh all about the Applicant’s history and also about the Applicant’s debt to the Commonwealth of Australia in the amount of approximately $2600. She said that he advised them that they could apply because of her education in Australia. He asked her about her qualifications; she said that she was a hairdresser. Although she had no formal qualifications, she became a hairdresser through experience. She said that she has received a positive skills assessment.
78. It would appear that hairdressing is one of those occupations which are in the list of occupations in demand. It may be noted at this point that although in respect of the skills application the Applicant is reflected as the primary applicant, the Applicant was relying on his Wife’s skills and more particularly the fact that she is a hairdresser. It should be noted also that although she has had experience as a hairdresser, she ceased that occupation about 10 years ago. From 1996 – 1999 she worked in an electronics company. In Australia she has taken English courses and a Diploma in IT. The MRT review related to studies in business. It would seem then that she seeks a career outside hairdressing.
79. The Wife said that they were asked questions about qualifications and experience and about addresses and also about parents. She said that she remembered questions about the date of birth of siblings but on another occasion. She said also that the Applicant was asked to produce his passport. The Wife was asked whether she remembered a question as to the Applicant’s criminal history; she answered that she could not remember. She said that Oh did not ask questions about deportation or exclusion from Australia or about outstanding debt. She was asked also if Oh sought information as to the Applicant’s military service and her answer was again “no”.
80. The Wife was then asked if it would surprise her to learn that the information in fact provided included information as to the Applicant’s military service. She answered that she did not remember how the information concerning military service came to be furnished. She insisted that no questions were asked of the Applicant as to his deportation. She also insisted that she did not see anybody write anything down.
81. The Wife said that she went back to see Oh in order to give him documents as to her work experience. She went alone but did not remember exactly when.
82. The Wife said that the Applicant had a visa for three months and that it was extended by Oh. She could not at first remember when this occurred but then said that it occurred in March 2003.
83. The Wife said that when she went back to Oh’s offices in March 2003 she was not interviewed by him or anyone in his office. She said that she made several trips to his office in March 2003.
84. The Wife said that she paid Oh $33,000 inclusively of school fees; she then amended this evidence to refer to $43,000. When asked where this came from she said that she borrowed $30,000 from the Applicant’s uncle in Korea and $15,000 from Su’s mother (who is the “sister”) in Korea.
85. The Wife agreed that when she went to see Oh, there were staff present but they were doing their own work on computers.
86. I do not think it necessary to refer in detail to the Wife’s evidence as to further meetings with Oh.
PART E THE EVIDENCE OF THE WIFE ON THE THIRD HEARING DAY
87. On the third hearing day the examination in chief of the Wife and also her cross-examination was completed.
88. The Wife said that she first became aware of the fact that the Applicant was indebted to the Commonwealth of Australia arising from his first detention and deportation in October 2002. She said that she had informed Oh of the debt at her first meeting with him after the Applicant returned to Australia in February 2003. She said that she did not read the skills application form carefully and relied on Oh to complete it. He had helped her in relation to the MRT and she trusted him.
89. She said that she went to see Oh on 5 February 2003 soon after the Applicant returned to Australia on 1 February 2003. There was discussion as to their affairs. In particular Oh asked her about her hairdressing skills. She believed she was the principal applicant in respect of the skills visa application and because hairdressing is on the list of skills in demand.
90. The Wife said that she became aware of the fact that DIMIA knew of his previous history when he was detained on 5 February 2004. She did not attend an interview (which took place at DIMIA’s offices); a daughter accompanied him but was not permitted to be present. The Wife heard that at that interview he answered “no” to questions as to whether he was indebted to the Commonwealth of Australia and also as to whether he had been in Australia previously.
91. The Wife said that she had a conversation with Oh after 5 February 2004 at which the debt was discussed. She denied that there was any discussion as to a refusal of the skills visa application on character grounds. She learned of the refusal only after the Applicant was detained; an application in this regard also was, so she said, made to the MRT. The debt owing to the Commonwealth or the first detention and removal is $2683.
92. The remainder of this Part D relates to the cross-examination of the Wife.
93. After the application for a skills visa was lodged, a letter was received from Adelaide requesting further documents and also a form 80. The Wife said that in August 2003 a letter was sent to Adelaide and in which the authorities were advised that the Applicant was indebted to the Commonwealth and that he had been in Australia previously. The skills visa application was sent on 29 May 2003. A bridging visa A was granted on 29 July 2003; at the same time further documents were requested. (The Tribunal notes that, as conceded by Mr. Levingston, the evidence contained in this clause 92 is double edged; on the one hand it suggests that the authorities were belatedly furnished with the truth; on the other hand it also suggests the Wife knew that it should have been furnished previously but was not).
94. The Wife admitted that she knew, through telephone conversations, that the Applicant, while in Korea, was planning to return by deceiving the Australian authorities. She said that she told him not to do so if it involved the payment of monies to the Korean authorities but that it would be in order to do so if he could change his name legally. She knew that he planned not to disclose the change of name even though honest dealing with the authorities would require disclosure. She said that she did not urge him to disclose the name change but she also did not urge him not to disclose it.
95. The Wife was then asked whether she understood his plans and was complicit in them. After a long silence she answered that she did not think that to say that she was involved would be appropriate.
96. The Wife again said that she did not urge him to make a disclosure and knew that the Applicant wanted to be in Australia with his family. It was then put to the Wife that she had no problem with his breaching Australia law. She answered that she thought that if he changed his name legally a return was an available option for him.
97. A question from the Tribunal as to how, while the Applicant was in Korea, she was managing about money elicited the response that he brought $20,000 back with him when he returned to Australia. It was pointed out to her that this was not an answer to the question which related to how she managed with money while he was away. She said that “I had some money in the account”. She said it arose from property in Korea which had been leased; when it was pointed out to her that she had previously said that they had brought money in the first place in consequence of the sale of property in Korea, she answered that it was now sold but that previously it had been leased.
98. The Wife said that she did not really think about the Applicant breaching Australian law; it was not something that concerned her. The Wife said that she told Oh at the meeting in February 2003 about the Applicant’s migration history and about his debt. She said that the Applicant also told him about both aspects.
99. In answer to Mr Cox, the Wife agreed that she did make the statement referred to in the first quoted in clause 14 of Exhibit A2.
100. I need not detail lengthy evidence which ensued and in which the Wife insisted that despite the fact that Oh had been told about the debt to the Commonwealth and the Applicant’s previous history, he nevertheless completed the 601 application and thereafter the skilled visa application falsely. It was put to her that allegations such as this could be harmful to Oh in his professional career. She said that “everyone makes mistakes. I don’t want to blame Oh. We had no intention to mislead the Australian authorities”. It was put to her that the Applicant had, in his evidence, admitted that he obtained new documents precisely in order to deceive the Australian authorities. She said that both she and the Applicant gave Oh the relevant information on 5 February 2003 and on several occasions thereafter.
101. The Wife then admitted that neither she nor the Applicant told Oh of the Applicant’s use of a previous name. Immediately afterwards she said that they told Oh of “everything” and including as to the name. When it was put to her that only moments previously she had said something entirely different, she said that “there was a misunderstanding”.
102. Mr Cox then put to the Wife, the second sentence of paragraph 23 of Exhibit A2, which although included previously in these reasons (and see clause 64) is, as a matter of convenience, repeated in this clause 101 as follows:
“There was no attempt as far as I was concerned to conceal anything from immigration as I knew that they would find out anyhow no matter what was left off the form”
The Wife insisted that there was no attempt to conceal anything. It was put to her that she knew that the Applicant used a different name in order to deceive which contradicted the sentence quoted and that therefore she deceived Oh in the same way as the Applicant deceived the authorities. Her answer (which was not really an answer) was that Oh knew all about the Applicant’s previous history.
PART F THE ADMISSIBILITY OF THE EVIDENCE OF OH
103. As set out previously Oh was compelled to give evidence and no statement, as required by section 500(6H), was provided in respect of Oh. Section 500(6H) of the Act provides as follows:
“(6H) If:
(a)an application is made to the Tribunal for a review of a decision under section 501; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.”
104. Mr Levingston contended that a letter written by Oh to DIMIA dated 16 November 2004 could be treated as a statement within section 500(6H) of the Act. It is unnecessary to quote the whole of that letter; the first page is included by way of sample as follows:
“Dear Joan
In response to your letter dated 5 November 2004, with regard to the "Notice of Intention to Refuse Visa Application Under Subsection 501(1) of The Migration Act 1958" for the above applicant, we are providing the following submission in support of Mr. Kim. In doing so, we have had regard to the attached documents which you provided with your letter and will address each topic under s 501 (1) that we feel is relevant to the circumstances currently under consideration.
The relevant ground for consideration Is s. 501.(6): For the purposes of this section, a person does not pass the "character test'" if:
(c ) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character.
Otherwise, the person passes the "character test"'.
Mr. Kim's criminal history, as outlined in the attached Australian Federal Police Certificate, does not constitute "substantial criminal record" (as defined by subsection (7), but must be viewed In the light of the entire scenario that evolved from the initial overstay In Australia as an unlawful non-citizen. The desperate measures that were taken by Mr. Kim to remain In Australia, including being engaged In work while unlawful and without written permission from DIMIA and his subsequent detention and removal, have had dire consequences for his entire family. It was not an Intentional disregard for the Australian legal system that produced this outcome but more a genuine desire to remain in Australia, so that the entire family would be able to live here as permanent residents, abiding by our laws.
In assessing Mr. Kim's good character for the purposes of paragraph SOI(6)(c), all the relevant circumstances of this particular case, Including evidence of rehabilitation and recent good conduct must be taken Into account Subsection SOI(6Xc)(II)- past and present general conduct Is applicable to Mr. Kim, for (b), (c) and (d) as is evidenced In your letter noting Mr. Kim's failure to declare that he had "visited and lived outside (his) country of usual residence for more than 3 consecutive months-; that he "was previously removed from Australia"; that he was "excluded from Australia-; and that he "had outstanding debts to the Australian Government or any public authority In Australia". Mr. Kim's failure to declare any of the above was done as a last ditch attempt to remain in Australia and not with an Intentional contempt for the law. As an unlawful
…”
105. It is my view that the letter dated 16 November 2004 cannot be treated as a statement within section 500(6H) of the Act. The wording of that section indicates that this must be so. In accordance with that section a statement of the evidence which the witness intends to give is required. The letter in question was written by Oh on behalf of the Applicant in an endeavour to persuade the Respondent not to refuse the skills visa application. It was in no sense a statement of the evidence he intended to give. Questions related to the admissibility of evidence in the context of section 500(6H) (and also section 500(6J)) of the Act were dealt with in some detail by Deputy President Jarvis in a recent decision of “SAAC" and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209; I include clauses 34,35,36,37 and 42 of that decision as follows:
34. Mr Prince relied in support of his submission on the decision of the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378. In that case, the Court decided that the Tribunal had a discretion to receive documents in evidence which had been provided by the respondent to the applicant even though the respondent did not provide them within the time frame required under the Act. Gray J (with whose judgment Nicholson and Stone JJ agreed) referred to s 500(6H) and (6J) which imposed restrictions on the applicant. His Honour said at [25]:
“The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put.”
He also referred to the second reading speech and to the intention of the sections, namely to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test.
35. Gray J also referred in his judgment to circumstances which meant that in the events that had occurred in that case, any disadvantage to the applicant in not receiving the documents from the Minister earlier had been ameliorated. This was in part because the Minister had invited the Tribunal to give the applicant an adjournment for some days to consider the relevant documents. His Honour then said at [31] (although this was not essential to his decision):
“The (applicant) declined this offer. In any event, the offer was probably based on a misunderstanding of the effect of subs (6H) and subs (6J). Once the Tribunal began a hearing, the entitlement of the (applicant) to rely on information and documents crystallised. That entitlement was limited to information contained in a statement or statements given to the Minister, and to the documents copies of which he had given to the Minister, at least two business days before the hearing began. The resumption of an adjourned hearing is not a new hearing.”
36. I also note that a similar view that an adjournment would not be an appropriate way of overcoming the requirements of s 500(6H) was expressed by Deputy President Chappell in Re Broadbent and Minister for Immigration and Multicultural Affairs [2000] AATA 822 at [63], where he said that:
“… quite apart from the relentless ticking of the decision making clock which cannot be stopped for any reason … the wording of the section would seem to envisage that once the hearing has commenced no such written statements can then be filed no matter what new circumstances or evidence may arise.”
37. In an earlier Tribunal case, namely Re Msumba and Department of Immigration and Multicultural Affairs (2000)] 31 AAR 192, Deputy President McMahon referred to the practical difficulties which arise from the expedited Tribunal procedures mandated by s 500(6A) to (6L) of the Act. The Deputy President indicated that evidence which explained or amplified a written statement would be admissible. He said at [5]:
“It may well be that strictly the subsection makes ineffective any oral hearing. Read literally, the subsection would restrict a witness simply to reading the statement which had been previously furnished. It would preclude any information elicited by the Department’s advocate by way of cross examination, unless it could be said that such information was not in support of the applicant’s case. I have taken the view that the policy of the legislation at least allows examination in chief to explain or amplify material in the written statement and allows that information to be tested by way of cross-examination. In doing so, I have relied on subsection 33(1) of the Administrative Appeals Tribunal Act 1975 which prescribes the nature of the procedures which this Tribunal should adopt. The freedom and flexibility of that subsection, however, may well have been limited by the provisions of subsection (6H).”
…
42. I further consider that the prohibition against the receipt of oral evidence in s 500(6H) would not apply to evidence elicited in cross-examination, because this could not be said to be information presented orally in support of an applicant’s case (see Re Trinh and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 321).”
106. Having regard to the decision in “SAAC” (supra) and the decisions and judgment therein cited (Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277, Msumba and Department of Immigration and Multicultural and Indigenous Affairs [2000] AATA 87 and Trienh and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1306), I consider that the applicable law may be summarised as follows:-
(a)However wide a meaning can be given to the term “statement” It must refer to a statement containing information to be presented orally in support of a person’s case; it cannot have so extended a meaning that it encompasses a letter written in a professional capacity on behalf of a person.
(b)The prohibition applies only to evidence presented in support of a person’s case. (See in this particular regard Deputy President Forgie in Trienh (supra))
(c)The prohibition may apply to evidence given in chief but not to evidence elicited in cross-examination.
107. In this matter, Oh’s evidence both in chief and in cross-examination was not in support of the Applicant’s case but in fact the opposite. This being so, all of his evidence is admissible and can be taken into account. This is so also if, despite my view to the contrary, the letter dated 16 November 2004 can be treated as a statement within section 500(6H) of the Act. In the alternative, if my views in this regard are incorrect or the letter in question cannot be treated as a statement, it is only Oh’s evidence in cross-examination which can be taken into account. Oh’s evidence against the Applicant was just as adverse as his evidence in chief; there is in practical terms no difference if his evidence in chief is ignored.
PART G ANALYSIS OF THE EVIDENCE
108. Failure of the character test was (correctly) conceded from the outset.
109. The Applicant came to Australia on a tourist visa valid for three months and renewed it for three months. He renewed it because he needed to do so. Yet he said that when the second period expired he did not know that he was illegally in Australia until the Wife arrived some considerable time later. That statement cannot be true.
110. Mr Levingston conceded (again correctly) that Oh was a good and credible witness. The skills visa application and the 601 application were completed with considerable care; precise details of the Applicant’s military service were provided. The refusal of a student visa was disclosed in the skills visa application.
111. It was never suggested that Oh had any reason or motive to be complicit in any dishonest fashion in the concealment of material facts. In fact, it is not conceivable that he would have done so. The fact that the Applicant and his Wife were prepared to make allegations of this nature against a professional man who had served them so well (and including of course his success in the MRT) reflects very badly on both of them. At the same time it gives some indication of the measure of their desperation since even if their allegations were true, it would not relieve the Applicant of responsibility for the disclosure failures. The Wife’s evidence as to financial matters was inconsistent and not worthy of credibility. Equally she was quite obviously complicit in the Applicant’s return to Australia in his new identity.
112. As I have indicated previously in these reasons, the evidence of each of the Applicant and his wife was often inconsistent and untruthful.
113. The evidence points overwhelmingly to the fact that this married couple were prepared to breach Australia’s immigration laws as often as was necessary (and it was often necessary) in order to achieve their design of residence in Australia for themselves and their two daughters. I have, as I said earlier, accepted that Su is their adopted daughter with some hesitation because firstly, there is no evidence of formal adoption and secondly because for years (between 1999 and 2003) she was cared for in financial terms and in every other way by her natural mother, and who is “the sister”.
114. Put in succinct form, the Applicant came to Australia on a tourist visa, renewed it and then overstayed and worked illegally. Having been caught and detained and forced to leave Australia, he was back in Australia with new documents having (according to his evidence) persuaded the Department of Foreign Affairs in Korea to assist him in his deception of the Australian authorities. On his return to Australia he again worked illegally. Following his return he also committed the two criminal offences. I am prepared to accept that the criminal offences fall within the broad spectrum or continuum of his decision to achieve residence in Australia. Following his second detention in February 2004 he has again contested a second removal from Australia. (Mr Levingston said in closing submissions that a year in Villawood is punishment and sends a sufficient message to the Korean community. The fact of the matter is that if it was punishment it was, and is, being self-inflicted, because he could at any time leave Australia in order to return to Korea).
115. It cannot be doubted that the Wife was party to the whole plan; it is not conceivable that she was, so to speak, “dragged” along. She was, after all, the one with the skills; it would appear that she has obtained approval of her skills as a hairdresser even though she had no formal training; has not been a hairdresser for about 10 years and her ambitions now appear to have taken an entirely different direction.
116. The Applicant and his Wife both gave untruthful evidence. The Applicant breached section 234 of the Act on numerous occasions. They cannot be believed for a single moment when they contend that the blame should be contributed to Oh. The Applicant knew that he could not have obtained a visa under his real name to Australia once he had been deported; this was why, with intent to deceive, he obtained new documents. But equally both of them knew that the 601 application and the skills application had no hope for success if answered honestly. Breach of section 234 occurred frequently in applications in interview and in evidence before the Tribunal. Breaches of section 235 of the Act also occurred in that the Applicant worked illegally throughout his period in Australia. His disregard for Australian immigration law was of such a nature that it even caused him to commit the two criminal offences. His conduct was, having regard to the penalties prescribed for breaches of section 234, very serious indeed; see also in this context clause 2.6c of Ministerial Direction 21.
117. What has occurred in this case was caused to an extent by the apparent vulnerability of the electronic visa system. A very slight name change was sufficient to deceive it. See also Cho & Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 112 where conduct of a similar nature occurred. It seems likely that the effect of name changes in Korea is known (as of course it is known in other countries; see in this regard for example Susilo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 495 in relation to Indonesia). The Applicant, when he worked, drew cash in hand wages i.e. without deduction of tax. He was employed by Korean employers. The whole illegal residence system rests, in my experience, to a considerable extent on being able to work illegally. If Australia were to adopt and utilise and prosecute laws similar to those in the United States of America pursuant to which the employer with knowledge is prosecuted, the strain on the Respondent’s resources would in all probability be eased to a very considerable extent.
PART HDIRECTION – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 – No. 21 (“DIRECTION 21”)
118. In this Part H, references to numbered clauses refer to numbered clauses in Direction 21.
119. The primary considerations are contained in clause 2.3 of Direction 21 reading as follows:
“2.3In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community; and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
120. Clause 2.3 must be read in conjunction with clause 2.5 of Direction 21 reading as follows:
“The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
121. In the context of recidivism generally I refer to clause 96 of my decision in Copeland and Minister for Immigration and Multicultural and Indigenous Affairs (2005) AATA 144 and the cases therein cited. I refer in particular to Deputy President McMahon’s statement in Lachmaiya and Minister for Immigration and Multicultural and Indigenous Affairs (1994) 19 AAR 148:
“...The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again trangress (sic) in matters where truth and good faith could be deceptively withheld”.
122. Although the Applicant has acted with complete and callous disregard of Australia’s immigration law, all of his offences (very serious though they were) fall within the same general spectrum. I consider, in other words, that the criminal offences can be put in the same broad category. On this basis he does not, in my view, pose a serious threat to Australia and recidivism is also not a serious risk; on the other hand, and that said, his behaviour has been so bad that the risk cannot by any means be discounted.
123. As regards deterrence I note that to grant a visa would send entirely the wrong message to the Korean community (some of whose members were present on the third hearing day).
124. In respect of clause 2.12 of Direction 21, I do not doubt that the expectations of the Australia community would favour the refusal of a visa.
125. Hardship within clause 2.17 does not appear to be relevant. Su is not yet 18 although her 18th birthday is not far away; I assume as I have said previously but with reservations, that she is his adopted daughter. Her best interests in such event (and they are of course to be considered as primary) would be served by being with both of her parents. Once the skilled visa application fails (and the affirmation of the decision under review will have this effect) the Applicant will be forced once again back to Korea and (as Mr. Levingston conceded) the Wife and the two daughters will also have to return to Korea. This being so the family will be reunited in Korea and so that there will not be any hardship factor which is relevant.
126. There is no possible basis upon which the discretion can be exercised in favour of the Applicant and the decision under review must be affirmed.
I certify that the 126 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President
Signed: A. Krilis Associate
Date/s of Hearing 15 and 18 February 2005, 8 March 2005
Date of Decision 18 March 2005
Solicitor for the Applicant Mr C. Levingston
Solicitor for the Respondent Mr A. Cox
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