Koh and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 1326
•22 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1326
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/592
GENERAL ADMINISTRATIVE DIVISION ) Re
Yin Ling Koh
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date22 December 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Sai Toung Lum.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – subclass 115 (last remaining relative) visa – refusal on character grounds – substantial criminal record – discretion that the Tribunal may exercise when the Visa Applicant fails the character test – necessity to balance the expectations and protection of the Australian community against any hardship to the Applicant and Visa Applicant – held strong evidence of rehabilitation and remorse and the hardship being suffered by the Applicant and her family outweigh any risk to the Australian community – held that the decision of the Respondent is set aside with a direction to the Respondent to not refuse the grant of a visa to the Visa Applicant.
Migration Act 1958 ss 499, 501, 501(6)(c)(ii)
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
22 December 2003 Mr RP Handley, Deputy President Summary
1. Mr Sai Toung (Steven) Lum, who is aged 34 and currently lives in Fiji, applied for a subclass 115 (last remaining relative) visa to live in Australia with his family. His family in Australia comprises his stepmother and four sisters, including Yin Ling Koh, (the Applicant). He has no living relatives in Fiji.
2. On 24 July 1997, Mr Lum was convicted of the offence of supplying a prohibited drug and sentenced to six years imprisonment. On appeal, this was reduced to a term of four years with a non-parole period of three years. A delegate of the Respondent found that Mr Lum did not pass the character test pursuant to s 501(6)(a) of the Migration Act 1958 (“the Act”) because he has a substantial criminal record, having been sentenced to a term of imprisonment of more than 12 months. The delegate therefore refused Mr Lum’s visa application. The issue for the Tribunal to determine is whether to exercise the discretion in s 501(1) of the Act to not refuse the grant of a visa.
Background
3. The Applicant, Yin Ling Koh, Mr Lum’s sister, was born in Fiji on 19 December 1964 and is aged 39. She is an Australian citizen, married and is employed as an accountant with American Express.
4. The Visa Applicant, Mr Lum, was born in Lautoka, Fiji, on 27 October 1969 and is aged 34. He is single. On 21 January 1987, Mr Lum arrived in Australia for the purpose of undertaking further study (T p86). He completed his Higher School Certificate, but failed to complete courses in which he subsequently enrolled at the University of New South Wales and the St George TAFE. He remained in Australia unlawfully after the expiry of his visa in 1992 and worked as a casual taxi driver.
5. On 23 June 1997, Mr Lum pleaded guilty before a magistrate to three charges of supplying the prohibited drug cocaine and two charges of possessing prohibited drugs, namely cocaine and ecstasy (S p108). On 24 July 1997, he was convicted and sentenced by Judge Craigie of the District Court of New South Wales to a total term of imprisonment of six years, with a non-parole period of four years (S p114). Mr Lum appealed against the severity of the sentence and, on 6 March 1998, the New South Wales Court of Criminal Appeal reduced Mr Lum’s sentence to four years with a non-parole period of three years (S p120).
6. On 23 July 2000, Mr Lum was released from prison and taken into immigration detention. On 27 July 2000, he departed Australia for Fiji where he has since been resident (T p87).
7. On 2 May 2002, Mr Lum lodged an application for a subclass 115 (last remaining relative) visa at the Australian High Commission in Suva (T p43). On 11 December 2002, a Principal Migration Officer at the Department’s Immigration Office in Suva advised Mr Lum that he did not pass the character test because of his substantial criminal record and inviting him to comment in relation to the exercise of the discretion (T p89). Mr Lum responded by letter of 28 January 2003 stating, amongst other things: that he took full responsibility for his actions; that he needed to be reunited with his family who were mourning the deaths of his father, brother and sister; and that he needed to be in Australia as a father figure to the two children of his deceased brother (T p92).
8. On 18 February 2003, a delegate of the Respondent decided to refuse the grant of a visa to Mr Lum because he was not of good character having regard to his substantial criminal record (T p12). On 9 April 2003, Ms Koh lodged an application for a review of this decision by the Tribunal (T p3).
9. At the hearing, Ms Koh was represented by Leonard Karp, of Counsel, and the Respondent was represented by Ishan Muthalib, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with supplementary documents (“the S Documents”) and documents tendered by the Applicant. At the hearing, oral evidence was given in person by Ms Koh and her sister Yin Fun Lum, and Mr Lum, Florence Smith and Lisa Yu gave evidence by conference telephone.
Relevant Law and Policy
10. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (a) as follows:
(a) the person has a substantial criminal record (as defined by subsection (7));
“Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
11. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”..
12. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
13. In the present case, Mr Lum does not pass the character test because of his “substantial criminal record”, having served a term of imprisonment of three years for the supply and possession of prohibited drugs. The issue, therefore, is whether the Tribunal should exercise the residual discretion under s 501(1) to decide, nevertheless, not to refuse the grant of a visa.
Evidence
Sai Toung Lum
14. Mr Lum first arrived in Australia on a student visa and attended Randwick Boys High School where he sat for his Higher School Certificate in 1987. The following year he gained entry to the University of New South Wales to undertake the Bacholor of Science course. He said he “dropped out” because of a lack of discipline and commitment. He subsequently enrolled in a Diploma of Electrical Engineering at St George TAFE in 1992 but also dropped out of that course for the same reasons. Mr Lum said he had personal problems: he was supporting himself; only his brother was in Australia and the rest of his family were in New Zealand; and he did not, at that time, appreciate how short life is and the importance of education. He now very much regrets not finishing those courses.
15. After the expiry of his student visa in 1992, Mr Lum remained in Australia, supporting himself by working as a casual taxi driver. He got in with “the wrong crowd” and became involved in drug trafficking, driven, he said, by greed and recklessness. He thought he would not be caught and ignored the advice of his family. He did not take drugs himself, did not appreciate their effect, and did not think of the consequences of drug trafficking on the wider community. However, after his arrest and imprisonment, he became aware of the effect of drugs on families and the community, of crimes committed due to the drugs, and of the damage to people’s lives. He felt guilty that he had contributed to those problems and would, if he could, have wound back the clock.
16. Mr Lum said that in prison he realised that he wanted a future for himself, and therefore spent as much time as possible studying. He also resolved to try and make amends by doing community work and trying to have a positive influence on those around him. He became interested in Christianity, which taught him not to be selfish, that we should love one another and that God has a reason for us in life.
17. Mr Lum studied both internally and externally run courses while in prison. For example, he completed internal courses on drugs and alcohol – he wanted to learn about the effect of drugs, and on anger management. Externally, he completed a Certificate in Accountancy and a Diploma in Information Technology. Mr Lum said he chose to study rather than work in order to make the most of his time in prison. In order to undertake the Diploma in Information Technology, which he commenced in January 1999, he had to show a good record, and having done so, he was permitted day release to study externally.
18. After completing the Diploma at the end of 1999, he looked for appropriate day release work to give him experience in information technology. He chose to undertake unpaid work for the Wesley Mission Information Technology Department both for the work experience and because he realised the importance of charitable work. He worked for the Wesley Mission full-time (from 9am to 5pm, five days a week) for five months: during the first three months, he was in Long Bay Prison and for the last two months he was in Silverwater. He was given day release and permitted to travel to and from work by bus. At the Wesley Mission, he provided “Helpdesk” support and assistance with both hardware and software. He enjoyed this work and gained a better understanding of the work undertaken by charitable organisations in the community.
19. During his time in prison, Mr Lum kept in touch with his family. They visited him at least once a month – for between one and three hours per visit according to the particular prison – and he maintained regular contact by phone. He spoke to his family of the realisation of what he had done and of his remorse. Prior to his imprisonment, he had always been close to his family and had lived with his sister, but when he had become involved in drug dealing, he would not listen to them.
20. Mr Lum said he was released from prison in July 2000. He had spoken previously with the Department of Immigration and knew he would have to leave Australia. His sister bought him an air ticket and, on 27 July 2000, he flew to Fiji. Initially, he stayed with an old schoolfriend, who was aware of his convictions, until he found his own flat.
21. It took about three months for Mr Lum to find a job. He obtained a job with Ghim Li Fashion in Lautoka where, three years later, he still works. He enjoys his work – he is in charge of the Information Technology Department providing information technology/computer support within the company. It is a responsible job making sure the system is working every day, sorting out problems etc. Mr Lum said Ghim Li Fashion has 4,000 employees and 150 computers. He has one other employee whose work he supervises. He currently earns about Fijian $1,000 per month, more than the average Fijian salary, which permits him to live comfortably. He lives in a unit by himself.
22. Mr Lum said in June/July 2001, he took a week’s unpaid leave from his job to assist the Wesley Mission set up a computer room and train locals in the use of computers on the island of Rotuma, 500 kms north of Fiji. Since early 2003, he has undertaken voluntary work for the Red Cross in Lautoka, attending meetings once a month and recently participating in the annual door knock appeal. He also does community work for the church which he attends on average once a fortnight, although over the last six months usually weekly.
23. Mr Lum is currently studying for the Microsoft Certificate in Systems Engineering. If he is permitted to return to Australia, he would like to return to university and obtain a qualification in computer networking. He has had no contact with the police nor committed any crime in Fiji.
24. Mr Lum said although he had a good job and friends in Fiji, he wants to be in Australia with his family. He accepts that the crimes he committed were very serious and that he deserved to go to prison, but he is a different person now and wants to be a productive member of the community. He was brought up in a close-knit family who provide each other with support. He is aware of the pain he caused his family. He feels very guilty that he was unable to be with his terminally ill older brother when he needed Mr Lum most. Similarly, he was unable to see his father before he died.
25. Mr Lum said he is close to his sisters. He also has a close relationship with his niece and nephew – his brother’s children, whom he phones about once a month and sends photos. He has responsibilities to them as the oldest male in his family – as a father figure – now his brother is dead. Mr Lum finds it difficult to be apart from his family. There is no one for him to turn to in Fiji.
Family Evidence
26. Mr Lum has two sisters: the Applicant, Yin Ling Koh, who is aged 39, married, an accountant, and living in Hurstville; and Yin Fun Lum, who is aged 37, married with one child aged two and a half years, an accountant, and also living in Hurstville.. Another sister and brother are deceased, as are both parents. Mr Lum’s older brother died of cancer while Mr Lum was in prison, leaving a wife and two children. The children are aged 14 and 11. Mr Lum’s father died on 15 May 2002. Mr Lum also has a stepmother and two stepsisters aged 21 and 19 by his father’s second marriage. Both stepsisters provided supportive statements. All Mr Lum’s immediate family living are Australian citizens and living in southern Sydney.
27. Both Ms Koh and Ms Lum gave evidence as to their close-knit family. This was confirmed by the two family friends who gave evidence: Lisa Yu, who employed Ms Koh casually in her restaurant when Ms Koh first came to Australia as a student and regards Ms Koh and her siblings as “just like family”; and Florence Smith, with whom Ms Koh boarded as a student and who has known her for 20 years, and also knows her sister Yin Fun Lum, although she only has met Mr Lum on two occasions – at his brother’s funeral and at Ms Koh’s wedding. Both Ms Koh and Ms Lum emphasised the importance of having all their family together. Ms Koh said she thinks about her brother every day and having him in Fiji is “soul destroying”.
28. Ms Lum said between 1992 and 1995, she and her younger brother shared a rented flat in Kogarah. She was working as an accountant. He was enrolled as a student and working casually as a taxi driver, but he was not interested in his studies. In early 1995, Ms Lum went to Hong Kong to work returning to Australia in mid 1996 when she went to live with her older brother at Eastlakes. At that time, her younger brother was still living in the same flat, which he shared with a flatmate. His general attitude was worse than before. He was stressed because of their older brother’s illness but he would not listen. Both Ms Koh and Ms Lum said he ignored their advice and they were unable to reason with him about his conduct. Ms Lum suspected that he was involved in drug dealing, although she had no evidence of this until his arrest. Both Ms Koh and Ms Lum are aware that their brother was convicted of dealing in cocaine and ecstasy. They were devastated by his arrest and conviction, especially at a time when their elder brother was terminally ill. Ms Koh said she thought her brother was mixing with “the wrong crowd” and was driven by greed. He deserved to be sent to prison.
29. Both sisters said that after Mr Lum’s arrest and imprisonment, his attitude changed markedly and he started listening. His sisters visited him in prison and spoke to him regularly on the phone. Mr Lum expressed remorse about the effect of his actions both on the community and on his family. He was very ashamed of his conduct. He said he should have been there for his older brother and two children in the period before his brother’s death. He also spoke of wanting to better himself through education and how he wanted to get a good job. In prison, he undertook a drug and alcohol course so that he better understood the effect of drugs.
30. Ms Koh said she and her sister had converted to Christianity prior to these events and, in 1999, Mr Lum also became interested and started attending church and reading the Bible in prison. He preferred to work for the Wesley Mission rather than get paid work after finishing his information technology course, and said he had a strong desire to continue undertaking charitable work on his release from prison. He was also determined to get a job as soon as he was released and to get his life back on track.
31. Because Mr Lum was in Australia illegally, his family knew he would have to return to Fiji on his release from prison, and he went of his own accord. Since then, Ms Koh and Ms Lum maintain contact with their brother by email, commonly weekly or more often, and by phone. They discuss his job and his studies and his family in Australia. He is very positive now. Ms Lum said his becoming a Christian has made him a more caring, generous and understanding person. He told them of his charitable work for the Wesley Mission and for the Red Cross. They are both convinced their brother has been rehabilitated and will never offend again. Ms Koh has been to visit her brother once during the three years he has been in Fiji. Their father and stepmother had booked to go to Fiji to see him in 2002 but, when their father became sick, he postponed the trip and then subsequently died. Visiting Mr Lum in Fiji is difficult financially and they all have busy lives in Australia.
32. Ms Koh said in 1997, before his arrest, Mr Lum used to spend a lot of time with his niece and nephew. He adored them. They were not taken to see him while he was in prison although he saw them briefly at their father’s funeral and later at Ms Koh’s wedding.
33. Ms Yu, the long-term family friend referred to above, also spoke of the change in Mr Lum after his arrest and imprisonment, and of his remorse. She visited him once in prison and they exchanged letters and cards and spoke on the phone. Since Mr Lum returned to Fiji, they maintain regular contact via email and a chat room. Ms Yu believes Mr Lum will not reoffend. He has stability in his life and a good job which he enjoys. He is also a devout Christian and gives to the community through voluntary work.
Other Evidence
34. The Applicant also tendered statements from Greg Clarke and Rick Morris, the leader and a team member respectively, who conducted the Kairos Prison Ministry Course in Basic Christianity which Mr Lum attended in Long Bay Prison in 1999. They have maintained contact with Mr Lum since his return to Fiji and spoke of his remorse and how they found him to be a loyal, reliable and trustworthy man who had learned a powerful lesson and will not reoffend. A similar supportive statement was made by the Chaplain of Silverwater Prison.
35. Three statements were tendered from those at the Wesley Mission in Sydney: from Dr Gordon Moyes, Mr John Armour and Dr Keith Suter. All spoke of the good work Mr Lum did for the Mission while working there on day release for five months in 2000 – of his dedication, conscientiousness, courteousness and professional attitude. They also referred to the voluntary work he subsequently did for the Mission following his return to Fiji.
36. The Applicant provided a reference from Mr Lum’s employer in Fiji, Ghim Li Fashion dated 4 November 2003, stating that Mr Lum is a conscientious and diligent worker whom they commended. There are also references from the Evangelical Fellowship Church which Mr Lum attends in Lautoka, from the Fiji Red Cross Society and from two friends with whom he has regular contact in Fiji. All attest to Mr Lum’s good character.
Consideration of the Law and Findings
37. As stated above, there is no dispute that Mr Lum does not pass the “character test” by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. Mr Lum was convicted of the supply of the prohibited drug cocaine and possession of the prohibited drugs cocaine and ecstasy for which he was sentenced to four years imprisonment (S p108).
38. The issue for the Tribunal, therefore, is whether to exercise the residual discretion under s 501(1) to decide, nevertheless, not to refuse the grant of a visa. In so doing, the Tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
39. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
40. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (a), drug-related crime, and in subparagraph (c), serious crimes against the Act.
41. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
42. Turning to the first of the primary considerations, the protection of the Australian community, there is no dispute that on 24 July 1997, Mr Lum was convicted of the supply and possession of prohibited drugs. In terms of the guidance provided by Direction No 21, there is no question that the offences of which Mr Lum was convicted – supplying the prohibited drug cocaine and possessing cocaine and ecstasy - should be considered very serious given the nature of the offences and the sentence of four years imprisonment imposed by the court (the original sentence of six years being reduced on appeal). Mr Lum was also in Australia illegally after his student visa expired in 1992 for a period of over five years.
43. With the regard to the likelihood that the conduct will be repeated, given the strong evidence of Mr Lum’s rehabilitation, the Tribunal finds that the likelihood of his reoffending is very small. There was extensive evidence as to how Mr Lum’s arrest and imprisonment “brought him to his senses” and as to his change of attitude and remorse at what he had done – a remorse both in respect of those affected by his criminal conduct in the community and of his family who were clearly devastated. The evidence of rehabilitation, discussed earlier, covers both the period of Mr Lum’s imprisonment and the period since 27 July 2000 when he returned to Fiji.
44. During his three years in prison, Mr Lum undertook both internal and external education programs including a Diploma in Information Technology completed in 1999 when he was permitted day release. The Tribunal notes that Mr Lum was apparently a model prisoner, secured day release for a significant portion of his sentence and was paroled at the earliest opportunity. The knowledge and skills Mr Lum acquired while studying for the Diploma in Information Technology, he used during the five months he spent working full-time on an unpaid basis for the Wesley Mission in Sydney prior to his release. This led in turn to the position he has held for the past three years in Fiji managing the information technology section of a fashion company with 4,000 employees. Mr Lum also gave evidence that if he is permitted to return to Australia, he will undertake further tertiary study. He is currently studying for the Microsoft Certificate in Systems Engineering.
45. Mr Lum has also become a Christian and undertaken charitable work. The evidence overwhelmingly supports a finding that Mr Lum is making a positive contribution to the community both through his employment and charitable work.
46. With regard to the second of the primary considerations, the expectations of the Australian community, the Respondent submitted that the community would expect that a person convicted of a drug related crime, who has served a four year prison sentence, should not be granted a visa. However, in the Tribunal’s view the community would also take into account the other relevant considerations in this case, in particular the very strong evidence of Mr Lum’s rehabilitation and his strong family ties. The evidence of Mr Lum’s sisters, which was corroborated by that of close family friends, is that they are a close-knit family who are very supportive of one another and rate their family relationships very highly. All Mr Lum’s family is in Australia and he wants to join them.
47. The third primary consideration, the Best Interests of the Child, is not, in the Tribunal’s view a relevant consideration in this matter because Mr Lum is not in a parental relationship with a child or children and his relationship with his niece and nephew – his deceased brother’s children, while close, is not of a kind contemplated by paragraph 2.3(c) of Direction No 21. As the oldest male in the family, Mr Lum feels a special bond to his niece and nephew. However, while he has maintained contact with them by phone, he has not seen them, since his imprisonment in 1997, except briefly at his brother’s funeral and at Ms Koh’s wedding. The children live with their mother in Carlton in Sydney.
48. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
49. The Tribunal had found that Mr Lum belongs to a close-knit family whose integrity is significantly disrupted by his absence in Fiji, where he has no family. This is undoubtedly causing hardship to both Ms Koh and their family in Australia. There is also strong evidence of Mr Lum’s rehabilitation and recent good conduct.
50. Weighing up the primary and other considerations, the Tribunal concludes that because Mr Lum is no threat to the Australian community and because the community would expect that the evidence of his rehabilitation and family ties would be taken into account, the correct decision is for the discretion in s 501(1) of the Act to be exercised in his favour so as not to refuse the grant of a visa.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 3 and 4 December 2003
Date of Decision 22 December 2003
Representative for the Applicant Mr L Karp, Counsel
Representative for the Respondent Mr I Muthalib, Solicitor
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