Lim and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 893

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 893

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/155

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ho Young Lim

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date15 September 2005

PlaceSydney

Decision The decision under review is affirmed.

..............................................

Professor GD Walker           
  Deputy President  

CATCHWORDS

IMMIGRATION – refusal of contributory parent visa – visa refused on the grounds of the applicant’s past and present general conduct – discretion that the tribunal may exercise where the visa applicant fails the character test – examination of the visa applicant’s illegal stay in Australia including his family situation, working illegally in Australia for an extended period of time, and making false and misleading statements in connection with a number of visa applications – examination of his present circumstances in Korea and the circumstances of his adult children in Australia – necessity for the tribunal to balance the protection and expectations of the Australian community against the hardship to the applicant and his family if a visa is refused – held that the primary considerations outweigh the emotional hardship to  his adult children and step-children – decision of the respondent affirmed.

Migration Act 1958 ss 499, 501, 501(6)(c)(ii)

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Ayaad and Minister forImmigration and Multicultural Affairs [2000] AATA 935

Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714

ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

15 September 2005	Professor GD Walker, Deputy President
Summary

1.      The visa applicant, Tae Doo Ban, who is 51 and a citizen of Korea, first came to Australia on 13 September 1988 on an entry permit valid until 9 October 1988.  He remained in Australia as an unlawful non-citizen after 9 October 1988 until granted a bridging visa C on 17 July 1998.  He again became an unlawful non-citizen on 25 September 1998. On 10 December 1998, he was granted a bridging visa E which was cancelled on 2 October 2003 after he was located in breach of his visa conditions.  On 27 November 2003, he departed Australia under supervision and on 3 December 2003, lodged an application for a contributory parent (migrant) visa to reside in Australia with his wife and children.

2.      The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, refused Mr Ban’s visa application on the grounds that he was not of good character because he remained in Australia as an unlawful non-citizen on two separate occasions, he worked in Australia without permission and in contravention of a bridging visa and he made false and misleading statements to the immigration department.  This is the decision to be reviewed by the tribunal.

Background

3.      The applicant, Mr Ho Young Lim, was born in South Korea on 2 June 1979 and is aged 26.  He arrived in Australia on 13 November 1987 and was granted Australian citizenship on 7 December 2000 (T p366).  He is an accountant with BSC Advantage Pty Ltd.   He is the sponsor and de facto stepson of the visa applicant, Tae Doo Ban.

4.      Mr Tae Doo Ban, the visa applicant, was born in Korea on 1 July 1954 and is aged 51.  He is a citizen of Korea.   On 18 June 1979, he married Myung Ae On, who was born on 5 January 1958 (T p470).   They have three daughters, Jung Un Ban born 7 July 1979 and aged 26, Jung A Ban born 31 August 1982 and aged 23, and Jung Yee Ban born 12 June 1984 and aged 21 (T p472).   Mr Ban’s three daughters are now Australian citizens.

5.      Mr Ban first entered Australia, without his family, on 13 September 1988 on an entry permit valid until 9 October 1988.  He did not leave Australia at the expiration of his permit, but remained in Australia as an unlawful non-citizen. 

6.      On 21 March 1990, Mr Ban lodged an application for an extended eligibility temporary entry permit.  This application was not processed by the immigration department.   On 5 March 1991, Ms On and their three children arrived in Australia on a visitor visa valid for six months.  They did not leave the country at the expiration of their visas, but remained in Australia as illegal non-citizens.  On 18 October 1993, Mr Ban lodged a further application for an extended eligibility temporary entry permit, which was refused on 8 June 1994 (T p61) and the decision was affirmed by a review officer of the Migration Review Tribunal (“MRT”) on 23 July 1996 on the ground that he did not meet the criteria for the subclass of permit applied for (T p82).   On 22 August 1996, Mr Ban lodged an appeal against that decision with the Immigration Review Tribunal (“IRT”) (T p159).  Neither of the applications included Mr Ban’s wife or his three children.

7.      On 20 November 1996, Mr Ban lodged an application for a protection visa with the then Department of Immigration and Ethnic Affairs, including his wife and three daughters as secondary applicants (T16 p89).  On 13 May 1997, the department refused Mr Ban’s protection visa application on the ground that his fear of persecution if he were to return to Korea was not well-founded (T20 pp133-140).  He subsequently lodged an appeal against this decision with the Refugee Review Tribunal (“RRT”).  On 11 June 1997, the IRT affirmed the decision to refuse Mr Ban’s application for an extended eligibility temporary entry permit (T22 p158).  On 17 July 1997, the visa applicant was granted a bridging visa C, with permission to work, pending the outcome of his protection visa appeal (T26 p169).

8.      In the period between 1992 (T p536) and 1995 (T p537), Mr Ban and Ms On separated.   They remain legally married.

9.      On 21 August 1998, the RRT affirmed the decision to refuse Mr Ban’s application for a protection visa, the decision-maker finding that Mr Ban did not have a well-founded fear of being persecuted for a convention reason if he were to return to Korea, and noting that he was not a credible witness and that he had significantly embellished his account of his alleged persecution in Korea since the original decision to refuse his visa application (T29 pp203-218).  He subsequently applied for ministerial intervention, which was refused.  Mr Ban became an unlawful non-citizen on 25 September 1998.

10.     On 10 December 1998, Mr Ban was granted a bridging visa E, valid for 28 days following the determination of the Kagi class action which the visa applicant had joined. That visa was subject to a “no work” condition (T35 p229).

11.     In August 1999, Mr Ban commenced a de facto relationship with Jeong Sook Lee.  Ms Lee was born in Korea on 16 October 1958 and is now aged 46.  She first came to Australia on 13 October 1987 with her two children, her son Ho Young Lim (the review applicant) and her daughter, Yi Jeong Lim, to join her then husband.  Ms Lee and her family did not leave Australia at the expiration of their visas, but remained in Australia as unlawful non-citizens.  Ms Lee remained in Australia unlawfully between 28 February 1988 and 1 September 1994 when she was granted a bridging visa C subject to the processing of a protection visa application which was subsequently refused (T p520). She then remained in Australia as an unlawful non-citizen between 18 July 1997 and 9 February 2001 when she was granted a bridging visa E.  Ms Lee was divorced from her husband on 14 January 1996 (T p468).   Her two adult children have both been granted Australian citizenship.

12.     On 18 October 2001, Mr Ban lodged an application for a close ties visa which was refused on 3 October 2002.  The decision was affirmed by the MRT on 2 April 2003.  Shortly thereafter he joined the ROSCO (“Resolution of Status for Chinese and Others”) and Lie class actions, but withdrew from the Lie class action on 28 April 2003.  He subsequently requested ministerial intervention, but that was refused on 12 December 2003.  Mr Ban remained in Australia on a bridging visa E which was subject to the conditions that he must continue to live at the address specified by him before the grant of the visa; that he must notify the department within two working days of a change of address; and that he was not entitled to work (T p232).

13.     On 2 October 2003, Mr Ban’s bridging visa E was cancelled after he was found working in breach of the “no work” condition, and he was detained at the Villawood Immigration Detention Centre, New South Wales (T44 pp271-273).   When interviewed by a departmental officer on 3 October 2003, he admitted that he did not have permission to work but had worked illegally as a taxi operator/driver for over 10 years and that he could not return to Korea because of his children (T p285).

14.     On 14 October 2003, Mr Ban was released from immigration detention on a bridging visa E valid until 14 November 2003, after payment of a security of $30,000 (T60 p364).  On 27 November 2003, he departed Australia, accompanied by Ms Lee.

15.     On 3 December 2003, Mr Ban lodged a subclass 143 contributory parent (migrant) visa application with the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), Perth Offshore Parents Centre (T61 p365).  His application was sponsored by Ms Lee’s son, Ho Young Lim, and his daughter, Jung A Ban, provided a joint assurance of support (T66 p446).  On 19 December 2003, an officer of the Perth Offshore Parent Centre notified Mr Ban, care of his solicitor, Michaela Byers, that he was considering refusing his application on the grounds that he had remained in Australia as an unlawful non-citizen, he had breached the conditions of a bridging visa granted to him, he had worked without permission for approximately 10 years and taking into account the unlawful status of his de facto spouse, Ms Lee, and inviting him to comment on these matters (T pp519-521).   Ms Byers responded on behalf of the visa applicant on 27 December 2003 (T72 p526). She admitted that the visa applicant had remained in Australia unlawfully, but pointed out that at the time, there was no bridging visa system in place.  He admitted that he worked without permission, but said he did so because his wife and daughters did not want to return to Korea and that he apologised for his transgressions but was acting in the best interests of his family.  Ms Byers submitted that both the visa applicant and Ms Lee were motivated by what was best for their families and that although they were “somewhat careless in respect to legalising their stay in Australia … Their carelessness has not been deliberate” (T p529).

16. On 11 January 2005, having considered the submissions of Mr Ban, a delegate of the respondent decided to refuse Mr Ban’s contributory parent visa on the ground that he did not pass the character test because of his past and present general conduct and having exercised his discretion under s 501(1) of the Migration Act 1958 (“the Act”) to refuse the grant of a visa.   That decision was received by Mr Ban on 16 January 2005 and on 7 February 2005, he lodged an application for a review of this decision by the tribunal.

17. At the hearing, the applicant was represented by Ian Archibald, counsel, instructed by Michaela Byers, solicitor, and the respondent was represented by Avenish Chand, solicitor, of Clayton Utz, lawyers. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken into evidence as Exhibit R1, together with the evidence tendered by the parties. Mr Ban gave oral evidence by telephone from Korea. Oral evidence in person was given by Jung Un Ban, Jung A Ban, Jung Yee Ban, Ho Young Lim and Sharon Yi Jeong Lim.

Relevant Law and Policy

18. 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 (c)(ii), as follows:

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:

…

(ii)       the person’s past and present general conduct;

the person is not of good character; …

19. 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. That 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”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

20. 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.

Issue

21. The issue for the Tribunal to determine in this case is, therefore, whether Mr Ban is not of good character having regard to his past and present general conduct so as to be precluded from the grant of subclass 143 contributory parent (migrant) visa. If the tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.

Evidence on the character issue

22.     The first part of the evidence relevant to the question of Mr Ban’s past and present general conduct relates to his entry into Australia and his remaining here unlawfully.  He arrived in Australia on a tourist visa on 15 September 1988 and was granted a permit to remain for one month.  His wife and children arrived, also on tourist visas, on 5 March 1991 and were granted temporary entry permits valid for six months. 

23.     One of the central requirements for a tourist or visitor visa is that the applicant is a genuine visitor who intends leaving at the end of the visit (J Vrachnas, K Boyd, N Bagaric, P Dimopoulos, Migration and Refugee Law: Principles and Practice in Australia (2005) page 142).  There is no evidence that Mr Ban or his family ever intended to leave Australia when their visas expired, indeed they have never suggested that they did so intend.  The family may therefore have come to Australia effectively under false representations in the first place.  Be that as it may, the evidence shows that Mr Ban was unlawfully in Australia for three separate periods totalling approximately two and a half years.  The first period was from the expiration of his entry permit until 1 September 1994, during which time he held no visa or permit at all.  He did, however, lodge an application for an extended eligibility temporary permit on 21 March 1990, and although that application was lost and therefore never processed, the respondent treats that first period of illegality as ending with the lodgment of that application.  Mr Ban claimed that “you lost my file to cover your [department’s] negligence and mistakes” (T p72), but there is no evidence to support that allegation.

24.     Mr Ban’s second period as an unlawful non-citizen began when his bridging visa C ceased on 25 September 1998 until he was located by departmental officers on 10 December 1998.  The third period extended from the termination of his bridging visa E on 5 August 1999 until he was located by compliance officers of the department on 30 May 2000.  Mr Ban in December 2003 admitted those three periods of unlawful stay (T p526), but in his statement of facts and contentions conceded only the first two.

25.     It will be noted that two of these periods during which Mr Ban was an unlawful non-citizen came to an end only when he was located by departmental officers.  If the department had not succeeded in finding him, he might have remained in the community unlawfully much longer.  At the hearing he said that he had been honest and truthful with the department, except for the first year and a half of his stay, when he was in hiding because he was afraid the South Korean authorities might discover where he was living and seek to harm him in some way because of the problems he had had while he was in Korea.  As the Refugee Review Tribunal observed, that claim was hard to reconcile with his statement that on his arrival in Australia from New Zealand he contacted the South Korean consulate in Sydney to inform them of his whereabouts (T p214).  As the RRT also noted, his failure to apply for refugee status until he had been working illegally in Australia for eight years also raises questions about the veracity of that statement (T p213). 

26.     Mr Ban admitted that he knew he should not remain in Australia without a visa or valid entry permit, but said that his wife and children did not wish to return to Korea. The children were “settled at school and flourishing in the freedom of Australia’s multicultural society”.  At all times he acted in the best interests of his family (T p527).  His wife and three children arrived in Australia on tourist visas on 5 March 1991 and were granted temporary entry permits for six months.  After those permits expired they all became prohibited non-citizens and illegal entrants (T p159).  Mr Ban must surely have been complicit at all stages in that process. 

27.     His three daughters have since become Australian citizens.  Jung Un Ban was granted a Certain Unlawful Non-citizens (AG-833) visa on 17 August 1999, Jung A Ban was granted a Close Ties (AO-832) visa on 14 September 2000, and his youngest daughter Jung Yee Ban received a Close Ties (AO-832) visa on 7 November 2002.  Thus, one daughter relied directly on her (innocent) unlawful status to obtain permanent residency, and ultimately citizenship, while the other two relied on close ties they had developed with Australia while here as a result of their father’s migration law violations.

28.     After separating from his wife, Mr Ban commenced a de facto spouse relationship with Ms Jeong Sook Lee in August 1999.  Ms Lee had arrived in Australia on 13 November 1987 as a student dependent, but had remained in Australia as an illegal entrant between 28 February 1988 and 23 October 1991.  She has been refused an EETEP (class 440 – prescribed illegal), a protection visa and a Close Ties (AO-832) visa in Australia and remained in Australia as an unlawful non-citizen between 18 July 1997 and 9 February 2001.  Ms Lee left Australia on the same date as Mr Ban, 27 November 2003.  Ms Lee’s character is not in issue in these proceedings, but it may be relevant by way of background that she was in Australia as an unlawful non-citizen for most of the time she was living in this country with Mr Ban, and it is reasonable to infer that he was aware of her unlawful status. 

29.     The second aspect of the evidence on the character issue relates to working without permission. The respondent contends that Mr Ban worked without permission for a period of approximately 10 years.  The applicant does not deny that, but points out that he disclosed the fact that he was working in his applications to the department.  He adds that an officer at the department’s Bankstown office in the course of a discussion in 1993 gave the impression that it was permissible for him to work.  “I think I relied on what he said,” Mr Ban said rather tentatively at the hearing.  “I’m not quite sure in what way”.  He said he did not realise that he was not permitted to work until his lawyer Adrian Joel told him in 1996 or 1997. 

30.     While it is true that Mr Ban did not falsely deny that he was working, I do not think it follows that he was unaware that he did not, or might not, have permission to work.  At the hearing he claimed he did not recall whether he thought he could lawfully work when he arrived in Australia in 1988.  The visa conditions had been interpreted for him at the embassy in Wellington and he did not remember whether the no-work condition was mentioned.  Those lapses of memory are unconvincing. Mr Ban was a mature man aged 34 when he arrived in Australia, a successful businessman who had been planning to expand his operations into the liquid petroleum gas area until local government approval had been denied.  Especially in emigrant societies such as South Korea, from which many people migrate to western countries in search of work or business opportunities, there is today a considerable degree of public awareness about the importance and availability of green cards, work permits and similar documents. Mr Ban is an intelligent and enterprising man and it is not credible that he would have landed in Australia in 1988 with no idea about whether he was permitted to work or not or, if he was in any doubt on the point, that he had no idea how to go about obtaining information on the subject. 

31.     He did know, however, that he had a permit to remain in Australia for only one month.  That would suggest to any person of reasonable intelligence that working for years as a taxi driver and later taxi operator was not within the scope of the permission granted.  Mr Archibald contended that his client had an “indeterminate state of mind concerning work until he was told about the no-work condition by Mr Joel”.  For the reasons already given, I do not accept that proposition, but in any case it cannot have any bearing on the situation for most of the period following 1996 or 1997, and in particular for the time between the grant of his first bridging visa E on 10 December 1998 (T p229) and the cancellation of his bridging visa E on 2 October 2003 for non compliance with the no-work condition (T p271). 

32.     The third aspect of the evidence on the character issue relates to the Minister’s contention that Mr Ban made false claims in relation to his protection visa application and has made false and misleading statements to immigration officers and the Refugee Review Tribunal in an attempt to extend his stay in Australia. 

33.     At the hearing, Mr Chand asked Mr Ban if he could explain the difference between the events he described in his protection visa application and those described in his EETEP application.  In the latter he wrote that “Major point of my application is that when I was in Korea I had been involved in anti-gov’t demonstrations against both govts under Mr Doo Hwan Chun’s regime and Mr Tae Woo Roh regime” and gave the date of those events as 12 December 1979 (T p49).  His protection visa application, however, made no mention of the 1979 demonstrations but instead claimed that he had been arrested, tortured for two days and forced to sign a confession following a demonstration at the nuclear power station where he worked in Pusan in March or April 1984 (T pp137, 217).  Asked why he had not previously said that he had been detained, he replied that his English had not been good enough to enable him to explain all the circumstances.  He had studied English for six years at school but had not practised it for some time.  As the quoted passage shows, however, Mr Ban’s English, even at the time of his EETEP application in October 1993, was quite equal to the task of describing the events in which he said he had been involved, and certainly of mentioning the 1984 events in some form. 

34.     It was put to him that the RRT had not believed his account of his experiences in South Korea.  The tribunal had said that it could not accept that he was telling the truth about his experiences and, in particular, that he was arrested after a demonstration at the power station, that he was detained for two days and two nights by the security service, tortured and forced to sign a false confession that he had spied for North Korea.  Nor did the RRT accept that he was subsequently called in by the police, that the police prevented him from selling his house and from establishing his LPG business; that he required the help of a friend of his brother-in-law who worked for the security service to obtain a passport to leave the country, or that he was in any danger of being punished for having left the country illegally or that his wife and children required the assistance of the security service officer to leave the country in their turn in March 1991 (T p217). 

35.     The tribunal also considered that his eight-year delay in seeking refugee status cast further doubt on the credibility of his claims and noted that he had “significantly embellished his account after the rejection of his application by the primary decision-maker” (T p216).  His explanation to the RRT that the discrepancies in his accounts resulted from his poor English did not convince the RRT either: “I do not accept that this explains the omission, having regard to the fact that the Applicant mentioned other, seemingly less important, instances” (T p215).  It may also be noted that Mr Ban told the RRT that he had not known he was to be leaving South Korea, and had no clothes or other personal effects with him (T p213), whereas at the hearing he said that he bought US$10,000 with him when he came to Australia in 1988, something he would be unlikely to do without preparation.  Mr Ban maintained at the hearing that his account to the RRT had been true, and Mr Archibald contended that the detail of his evidence showed that his state of mind when he arrived in Australia was one of genuine subjective belief in the reality of the risks he would run if he returned to Korea.  The tribunal found, however, that Mr Ban was not a truthful witness and added “I do not accept that the Applicant genuinely fears that he will be persecuted if he returns to South Korea” (T pp215-216).  The delegate who made the original decision to reject to the protection visa application also expressed doubts about Mr Ban’s credibility (T p138). 

36.     Nothing in the evidence before the tribunal provides any reason to doubt the correctness of the RRT’s conclusion that Mr Ban’s account of his experiences in South Korea was untruthful in several material respects.  I therefore find that the Minister’s contention that Mr Ban made false claims and misleading statements to immigration officers and the RRT in an attempt to extend his stay in Australia is well founded.

37.     The character evidence in Mr Ban’s favour includes the undisputed fact that he has no non-traffic convictions of any kind.  His daughter Helen (Jung Un) Ban described how he used to work up to 13 hours a day driving a cab and had built up his net worth from nothing to the point that when he left Australia he owned four houses (one of which he sold) and a quantity of shares.  He had taken active steps to ensure that his daughters grew up with a firm grounding in Christian moral principles, were members of a church and undertook voluntary work for the less fortunate in society.  A framed set of house rules laying down appropriate moral and social behaviour hung on the living room wall for 10 years (Exhibit A4). 

38.       It was not disputed that Mr Ban is a hard worker who arrived in Australia in 1988 with no assets (or, on the alternative version, with US$10,000) and had improved his position to the extent that he owned the four houses and the shares just mentioned.  He stated that since his return to Korea he had not been able to find paid employment because of his age (51) but had undertaken voluntary work.  For several weeks he had worked as a translator for a charity group named ARIA (Adventist Relief and Improvement Agency) for the relief project associated with the Yong-Chen train disaster in North Korea.  He had also worked during the school holidays as an English teacher in a class for students from low-income households. 

39.     Mr Archibald submitted that while in Australia Mr Ban had not breached the law “as an activity” and that his violations of immigration law were isolated events.  He had duly paid his taxes, as evidenced by Exhibit A2, which included his income tax assessments for most of the years from 1995 to 2002.  For four of those years, his taxable income was less than $15,000 and never exceeded the $24,520 on which he was assessed in 1997.  That makes his achievement of buying four houses and a quantity of shares, while supporting and educating three daughters, all the more remarkable.   

Evidence in relation to the exercise of the discretion 

40. The evidence concerning the nature and circumstances of Mr Ban’s breaches of migration law, and the evidence of good character, are also relevant to the exercise of the statutory discretion in s 501(1).

41.     Mr Ban’s three daughters all said that since the return of Mr Ban and Ms Lee to Korea in 2003, relations between them and Ms Lee’s children had become strained and marked by frequent disagreements.  Previously their father had provided guidance in the difficult decisions that had to be made from day to day.  Sonia (Jung A ) and Fiona (Jung Yee) Ban live together in one of their father’s houses and they receive the Youth Allowance of approximately $280 per fortnight, together with money they receive from their father.  Their financial position is adequate, but they miss having someone to talk to.  They agree that it is possible for them to visit their father and Ms Lee in Korea, the only constraint being financial, but both say they could not return to live there because their Korean language skills are not adequate for work purposes and they would find it difficult to adjust to living there again.  Their sister Helen Ban swore a statutory declaration to a similar effect.

42.     The applicant Mr Ho Young Lim, Ms Lee’s son, agrees that relations between Mr Ban’s children and Ms Lee’s have deteriorated since his departure and also believes that with his present level of skill in the Korean language he could not without great difficulty obtain a well-paid position there, and in any event he had no wish to live or work in that country.  Mr Lim is a qualified accountant and assistant manager in an accounting firm.  He has 18 months of study to complete before qualifying as a chartered accountant.  He thinks it unlikely that he would be in a position to visit his mother and step-father in Korea until he has finished those studies and takes the view that he should be able to see his parents whenever he likes.

43.     As an accountant he assisted Mr Ban with his financial affairs and knew he owned four properties.  One had been sold and the proceeds of the sale were being used to support his father and step-mother.  Two of the sisters were living in one of the remaining houses, while the other two properties were leased.  He said that both of those properties were losing money because of interest payments.  In that respect his evidence conflicted with that of Mr Ban, who said that the houses were producing a return which was being used to support his daughters. 

44.     The children range in age from 21 to 26.  The youngest, Sharon Yi Jeong Lee, currently lives with her brother.  After her parents were divorced in 1994, she went to live with her father until she was 16, but her father did not want her to see her mother.  Relations with him therefore broke down when she was 16 and she left home, moving in with her mother and living with her for about a year.  Relations were good at first, but at the expense of relations with her father who shut her out of his life for three years. 

45.     In his oral evidence Mr Ban said he and Ms Lee were currently living with her parents in a two bedroom apartment in Seoul.  He has qualifications in the handling of pressurised gas but has not been able to obtain work, he says, because the seniority system in the Korean wage structure makes him more expensive to employ at his present age of 51 than a younger worker.  Since returning to Korea he has undertaken only voluntary work.  He has sold one of his houses in Australia and is “living off the proceeds in case we need money”.  He estimated that that source would be exhausted within four months.  The income from the other two houses produces a surplus over expenses “that is no big deal”.  It does, however, cover the children’s living expenses.  He predicted that they would be dependent on him until they finished their university studies.  There is no system of age pensions in Korea yet, Mr Ban said, so it might be necessary for him to sell his remaining houses.  He has a married sister and a retired brother in Korea and Ms Lee has worked intermittedly in restaurants, earning about $1500 per month.  The separation from his children he described as having an “enormous impact, indescribable, terrible”. The relations between his daughters and Ms Lee’s children had been good before he left, but had deteriorated.  Added to the effect on his children of his separation from his wife in 1991, the emotional impact was “enormous”. 

46.     Mr Chand pointed out to Mr Ban that he had conducted a business in Korea before his departure in 1988 and suggested that he might be able to start another one now.  Mr Ban said to do that one must know the area and the society and have capital with which to start out.  Asked whether he could use the proceeds of selling one of his Australian properties for that purpose, he replied “I can’t answer that”.  He did have a business in Korea previously, but society had changed enormously and he faced problems in assimilating back into it, he said. 

Application of the Law and Findings of Fact

47. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), Mr Ban passes the “character test” having regard to his past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431).  However, this does not require the Applicant to meet the highest standards of integrity.  The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

48. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Mr Ban does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

49. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of his or her past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b), 1.9(c), and 1.9(d), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)); or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)); or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)); or where the non-citizen has previously been removed from Australia (paragraph 1.9(d)).

50.     Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.

51.     In this case, the visa applicant has accumulated a substantial record of immigration law violations, including that he remained in Australia as an unlawful non-citizen after the expiration of his entry permit on 9 October 1988 until 21 March 1990 and made no attempt to regularise his status in Australia during that period, that he again remained in Australia as an unlawful non-citizen between 25 September 1998 and 10 December 1998 when he was located working in contravention of his bridging visa, and that he worked without permission for a period of approximately 10 years.  The Minister also contends that Mr Ban made false and misleading statements to immigration officers and the RRT in an attempt to extend his stay in Australia, and I find that allegation proved also.

52.     Mr Archibald contended that Mr Ban’s overstays were short.  Whether they totalled one year and five months as Mr Archibald conceded at the hearing, or two and a half years as the applicant appears to have conceded before the hearing, I agree that they are not so outrageous as to be incapable of being outweighed by evidence of good character and similar factors.  But when added to 10 years of working without permission (all of which, in my view, was done knowingly, though for a time Mr Ban may have thought it was not viewed seriously by the authorities) and his multiple and substantial misleading statements, the case becomes much more weighty.  Working unlawfully has put him in breach of s 235(1) and (3), an offence carrying a penalty of $10,000.  Making false or misleading statements in connexion with a visa application is punishable under s 234 by up to 10 years’ imprisonment.

53. There is evidence of good character to be weighed against that: he is industrious, he has no non-traffic criminal convictions and has endeavoured to raise his children to be disciplined and principled. Nevertheless, his attitude to migration law has been one of sustained contempt and disregard and I conclude that he fails the character test as set out in s 501(6)(c)(ii).

54. Having decided that Mr Ban does not pass the character test by reason of his immigration misconduct, I must then decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to Mr Ban. In exercising this discretion, the Tribunal has regard to Part 2 of Direction No 21. 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.

55.     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.

56. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

57.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”. 

Protection of the Australian community

58. As regards the first primary consideration, the seriousness and nature of the conduct, it is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that serious offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. Mr Ban’s false and misleading statements in connexion with his protection visa application and RRT appeal fall into that category and constitute offences against s 234(1)(b) or (c) or both, carrying a maximum penalty of 10 years’ imprisonment. Working in contravention of a visa condition, as Mr Ban has done over long periods, infringes s 235 and incurs a fine of up to $10,000. Both those contraventions must be regarded as very serious. Mr Ban also stayed in Australia without a visa for approximately one year six months, or alternatively two years and six months. This record discloses a pattern of deliberate and serious disregard of the Commonwealth’s migration laws amounting to serious misconduct on his part.

59.     Mr Ban also gave evidence that he worked as taxi driver.  In doing so, it is likely that he would have made a false and misleading statement to the department and to the Department of Motor Transport in connection with obtaining a passenger-vehicle license, applicants for which (if non-citizens) are required to state whether they have permission to work.  As his application form is not in evidence, however, I make no finding on that point.

60.     The Direction also requires the tribunal to take into account the likelihood that the conduct may be repeated (including any risk of recidivism) in considering the protection of the Australian community.  In Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714 the tribunal stated:

In considering whether or not there is likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition.  However the risk of recidivism is not constrained in this way.  If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is I think legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.

61.     In the applicant’s statement of facts and contentions filed with the tribunal (Exhibit A1), Ms Byers submitted on behalf of the visa applicant:  “There is no likelihood that the conduct of the visa applicant would be repeated if the visa applicant were granted a visa.  … It is contended that the fact that the visa applicant left Australia voluntarily and remained outside Australia since the date of his departure is evidence of rehabilitation” (Exhibit A1 p6).  As to the latter, in practical terms Mr Ban may have had little choice other than to make a monitored departure, but on the other hand the evidence of his voluntary work since returning to Korea can be viewed as a sign of rehabilitation.  As against that I believe he was less than truthful in his testimony before the tribunal on several material matters as outlined above.  That indicates a risk of recidivism, whether in relation to migration law or in relation to other dealings with Australian federal or state governments. 

62.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.  Granting a visa to someone who has shown such blatant disregard for Australian immigration laws would send entirely the wrong message to anyone contemplating similar misconduct.  In ReAyaad and Minister forImmigration and Multicultural Affairs [2000] AATA 935, the tribunal described the rationale for that approach in these words:

Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourable considered.

63.     I find that the protection of the Australian community weighs against the grant of a visa in this case.

Expectations of the Australian community

64.     With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

65.       In my view the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it.  Since he landed in Australia in 1988 on a tourist visa that was itself probably obtained through a false representation about his intention to leave when it expired, Mr Ban’s migration law violations have been so serious, individually but also especially cumulatively, that community expectations would favour the refusal of a visa in this case. Before the current application, he has had multiple opportunities to establish his entitlement to remain in Australia and has made full use of them.  He has sought an extended eligibility temporary permit, a protection visa and several bridging visas.  He flagrantly breached the no-work condition in one of those visas.  He has availed himself of appeal rights to the Immigration Review Tribunal, the Refugee Review Tribunal, the Federal Court, the Ombudsman and the Minister.  Thanks to his unlawful stays and unlawful work, he has been able to obtain Australian citizenship for his three children. All his applications to extend his own stay (except the Lie class action from which he withdrew) have been rejected by a variety of authorities.  Despite being given every legal and procedural opportunity, Mr Ban has continued to violate the Commonwealth’s migration laws, notably by continuing to work in breach of his bridging visa conditions until he was detected by departmental officials.  In my view most members of the community would see little reason for exercising the discretion in favour of granting a visa in this case. 

The Best Interests of the Child

66.     Mr Ban has three children, the youngest of whom is aged 21.  Ms Lee has two children aged 23 and 26 respectively whom Mr Ban considers to be his step-children.  As they are all over 18, their interests are not relevant to this section but will be dealt with as other considerations.

Other Considerations

67.     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; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct. 

68.     Mr Ban has three children living in Australia, Jung Un Ban who is now aged 26, Jung A Ban who is now aged 23, and Jung Yee Ban who is now aged 21.  They are all Australian citizens and in either full-time work or study.  Jung Un Ban, known as Helen Ban, filed a statutory declaration with the tribunal stating that she and her sisters miss their father and his de facto spouse and that her father infringed Australia’s immigration laws because he was doing what was best for his family.  With regard to whether she would be able to see her father in Korea if his visa application were refused, she said “It is difficult for me to get sufficient time off work to enable me to go overseas to visit my parents. I do not believe that it will be feasible for me to go to Korea for many years. It is unlikely that I will have face to face contact with either of my parents for a long time and this is very distressing for me”.   Her sisters’ evidence to a similar effect has been outlined above.

69.     Ms Lee has two adult children, a son, Ho Young Lim, aged 26, who is the applicant before the tribunal, and a daughter, Sharon Yi Jeong Lim, 23.  Both are Australian citizens.   Mr Ho Lim filed a statement with the tribunal which stated that he had no wish to live in Korea and that it would be unlikely that he would find employment there.  Of the separation from his mother and Mr Ban, who he regards as his step-father, he said:  “I lived with my mother all my life prior to her departure to Korea. She is very important to me. I find it difficult to adjust to life in Australia without her.  I have a good relationship with Tae Doo Ban who I regard as my step father … It is my wish that my mother and Tae Doo Ban be permitted to return to live in Australia”.   His sister Sharon’s evidence has been outlined above.

70.     The youngest of the five children is aged 21.  While most of them have not yet completed their tertiary studies, they are financially provided for and seem well established in Australia.  It seems most unlikely that any of them would wish to return to Korea to live.  The separation from their parents is causing some stresses among them and Sharon, at least, is likely to suffer some emotional hardship for a time as a result of the separation.  In the modern world, however, it is quite common for parents to be living in a different country from their grown children and that is accepted as part of the price to pay for making the most of the opportunities available in today’s globalized economy.  It also frequently happens that adult children marry a foreign national and as a result move to another country.  Korea is quite an accessible destination from Australia and there is no reason why all of the children should not be able to visit their parents there from time to time.  The evidence of both Sonia and Fiona Ban was that they visited their father and step-mother in 2004, the trip being paid for by Mr Ban.  Ho Young Lim also gave evidence that he has been to Korea.  

71.     Mr Ban says that his age is an impediment to his obtaining employment in Korea, but he is an intelligent and enterprising man with a demonstrated ability to establish successful businesses of his own.  He has considerable financial means potentially at his disposal and became rather evasive when asked whether he could use those resources to establish another business in Korea.  On the whole, therefore, I do not consider that the other considerations weigh strongly in favour of granting a visa. 

72.     I therefore find that the secondary considerations do not outweigh the primary considerations of community protection and expectations in this case.

73.     The decision under review is affirmed.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  22 and 23 August 2005
Date of Decision  15 September 2005
Counsel for the Applicant         Mr I Archibald
Solicitor for the Applicant          Ms M Byers, Solicitor
Solicitor for the Respondent     Mr A Chand, Clayton Utz