Moon and Minister for Immigration and Multicultural Affairs
[2005] AATA 652
•7 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 652
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1331
GENERAL ADMINISTRATIVE DIVISION ) Re ME AE MOON(replacing WOO JUN LIM) Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr J Block, Deputy President Date7 July 2005
PlaceSydney
Decision The decision under review is affirmed.
[sgd] Deputy President
Mr Julian Block
CATCHWORDS
IMMIGRATION – refusal of a visa – consideration of facts – evidence of the Applicant – cross examination of the Applicant – failure of family members to testify – Direction 21 – misleading authorities as to identity – overstaying visa – false protection visa application followed by referral of refusal to the Refugee Review Tribunal – joining of High Court class action as a refugee – attempt to return to Australia on false documents – refusal of visa on character grounds
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 37, 234
Migration Act 1958, s501
CASE LAW
Beale v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Hanna v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 257
In Soo Cho v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 112
Jones v Dunkel (1959) 101 CLR 298
Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239
Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575
Susilo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 495
REASONS FOR DECISION
Mr J Block, Deputy President A.Introduction and General
1.The decision under review is the refusal (on 11 September 2004) of a contributory parent (CA-143) visa applied for by Sun Sen Yoon (“the Visa Applicant”) who is resident in and a citizen of Korea. Me Ae Moon, her daughter, was substituted (by consent) as the Applicant when the hearing commenced on 23 June 2005. It may be noted that the Visa Applicant originally filed an application which was not sponsored and was thus incompetent. In accordance with a subsequent direction made prior to the commencement of the hearing, Woo Jun Lim (the Visa Applicant’s son) was substituted as the Applicant. When the hearing commenced, an application was made for the substitution of Me Ae Moon in place of Woo Jun Lim, and since that application was made by consent, it was allowed. As to why all of these changes were necessary is not relevant for the purposes of this decision.
2.The Applicant was represented by Mr Gareth Lewis of Lewis Law, solicitors while Ms S Koya of Phillips Fox, solicitors appeared for the Respondent. The Tribunal had before it the T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
3.The Respondent’s statement of facts and contentions dated 28 February 2005 contains a chronological history of relevant events; its content under the heads of “Facts” contained in clauses 3 to 18 inclusive is set out in these reasons as follows:
3 On 2 July 1992, the Applicant first arrived in Australia as the holder of a visitor (subclass 670) visa. (T8, page 71)
4 On 8 October 1992, she departed Australia. (T8, page 71)
5 On 13 June 1993, the Applicant re-entered Australia as the holder of a visitor (subclass 683) visa. She was granted a further temporary entry permit extending her lawful stay until 2 June 1994. (T8, page 71)
6 The Applicant remained in Australia as an unlawful non-citizen after that date. (T8, page 71)
7 On 17 March 1997, she was located by Compliance officers of the Respondent and detained under section 189(1) of the Act. (T14, page 127)
8 On 19 March 1997, the Applicant applied for a protection visa (T15, pages 128 to 156). On 21 March 1997, she was released from detention.
9 On 4 June 1997, the delegate of the Respondent refused the Applicant a protection visa. (T16, pages 152 to 156)
10 On 8 October 1998 the Refugee Review Tribunal affirmed the delegate's decision not to grant the Applicant a protection visa. (T17, pages 157 to 162)
11 On 12 November 1998, the Applicant's bridging E (WE-050) visa ceased and she remained unlawfully in Australia. (T8, page 71)
12 The Applicant departed Australia on 13 January 2001. (T8, page 71)
13 On 23 February 2001, the Australian Embassy in Seoul advised that the Applicant had obtained a new passport in the name of Yun Soon Sun and had unsuccessfully applied for an Electronic Travel Authority. (T2, page 8, T9 and T10, pages 77 and 81)
14 The Applicant has four children, three of whom are Australian citizens. On 18 March 2003, the Applicant applied for a parent (AX-103) visa, but withdrew that application on 23 July 2003. She applied for a contributory parent (CA-143) visa on the same date. (T6, page 48)
15 One 3 March 2004, the Respondent's delegate wrote to the Applicant advising her of its intention to refuse the visa on character grounds, highlighting subparagraph 501(6)(c)(ii) as the relevant section and citing the relevant matters it would take into account. (T9, pages 76-77)
16 On 16 April 2004, the Applicant responded through a letter written by her son, Mr Woo Jun Lim, the Review Applicant. (T10, pages 80-82). In that letter, the Applicant stated that:
16.1 She came to Australia in search of a better life after the death of her husband and given that she had two daughters residing in Australia; (T10, page 80)
16.2 She is devoted to her family and remained in Australia to look after them; (T10, page 80)
16.3 She may have provided incorrect information to Compliance officers because in Korea they have two birthdays, and information provided to the officers would have been according to the moon calendar; (T10, page 81)
16.4 She did not intend to provide incorrect information to Compliance officers; (T10, page 81)
16.5 She remained unlawfully in Australia because at the time her bridging visa expired Korea suffered from the Asian economic crisis and she would have been unable to support herself; (T10, page 81)
16.6 She left Australia in January 2001 in order to be with her daughter in Korea who was experiencing marital problems; (T10, page 81)
16.7 One of the worshippers at her church where she volunteered in the kitchen suggested that changing the spelling of her name in the passport would enable her to obtain a visa to enter Australia. She followed his advice without realising the seriousness of her actions; (T10, page 81)
17 On 16 September 2004, the Respondent refused the applicant a Contributory Parent (CA-143) Visa pursuant to subsection 501(1) of the Act after finding that the applicant did not pass the character test in subsection 501(6)( c)(ii) of the Act. (T2, page 5)
18 The Respondent's delegate found that the Applicant did not satisfy the character test because her past and present general conduct indicated that she was not a person of good character. The delegate reached this conclusion after considering the Applicant's unlawful stays in Australia, the fact that she provided incorrect or misleading information to compliance officers when located as an unlawful non-citizen and the fact that she had changed her name in an attempt to obtain an electronic travel authority. (T2, page 16)
4.The Applicant’s Statement of Facts and Contentions which was received under cover of a letter from Lewis Law dated 16 June 2005 noted that in relation to clauses 3 to 18 of the Respondent’s Statement of Facts and Contentions (referred to in the preceding clause) there was agreement with all of those clauses except that in relation to clauses 13 and 18, the Applicant contended as follows:
13. The applicant concedes that the visa applicant had applied for a new passport in February 2001 and intend to apply for a temporary visa to visit Australia. According to a letter from the Australian Embassy in Seoul the visa had applied for was a subclass 676 visa and NOT an Electronic Travel Authority. The letter also provided the reason of refusal. We attach a copy of this letter as it was not included in the T-document.
18. The Minister’s decision was expressed as follows: “I have decided that Ms Sun Sen Yoon has not satisfied me that she passes the character test. I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 01(1) OF THE ACT TO REFUSE TO GRANT A VISA to Ms Yoon. My reasons for this decision are stated at Part E of this record. (T2 Page 16)
5.Under cover of his letter to the Tribunal dated 16 June 2005, Mr Lewis also included a number of other documents, none of which were, in the result formally tendered. However a reference was made during the proceedings to the Visa Applicant’s passports and she was cross-examined in respect of them; it is accordingly in my view proper for me to note that amongst those documents are extracts from two passports, both referable to the Visa Applicant, and where the details are broadly the same but excepting only that in respect of one of them the name recorded is Sun Sen Yoon and in the other of them the name recorded is Soon Sun Yoon; in addition the numbers of the passports differ. However and although in respect of one of the passports the Visa Applicant appears without spectacles and in the other she appears with spectacles, it is clear enough that the passports both refer to the Visa Applicant.
6.In the same context, one of the documents which were sent under cover of Mr Lewis’ letter was a statement by the Visa Applicant. That document too was not tendered, perhaps in consequence of an oversight. I think it relevant to note that clause 18 of that document reads as follows: “I know there is no excuse for breaching Australian migration law. However, other than overstaying I did not breach any other law.” That statement was so inaccurate in the light of the evidence which was given before the Tribunal that it is, and for this reason included in this decision.
7.Other documents sent under cover of Mr Lewis’ letter included statements by the Visa Applicant’s three children in Australia, Woo Jun Lim, Mi Ae Moon and Mi Sun An. However, and in the result, none of them gave evidence. Nevertheless, a letter dated 16 April 2004 by those three children forms part of the T-documents and is thus in evidence; in the light of the evidence before the Tribunal it is significant not so much for what it does say but for what it does not say; in particular it mostly glosses over all of her breaches of immigration law. The very fact that such a letter could have been written reinforces my view that the Australian children were complicit throughout. T10 (T page 80 to T page 82) reads as follows:
Dear Sir/Madam
First of all, I and my sisters thank you for this opportunity to write to you to explain about our mother’s past actions that you have mentioned to us which could be negative influence on our mother’s current application for Contributory Parent visa.
If my sisters had known the law and have been wealthier they would not let our mother to overstay her visa and breaking the Australian law and branded as a person of ill character. My mother came to Australia in search of better and refreshing life after the death of her husband and fact that two of her eldest children were married and living in Australia. Our mother, like many of Korean people of her age had little education and for most of life she was dependent on her parents and later her husband for financial support and she was expected to raise the children and do the household duties. After our father died without much financial assets, she still had to support me and herself. Without much skill and education and fact that she was in her mid fifties compelled her to seek better life for both herself and me. She decided that since her two eldest daughters were in Australia, she would go to Australia and be supported by them. However my sisters were still settling in Australia. Mi Sun my eldest sister came to Australia in 1989, shortly after she got married and a few years later she became Australian citizen. Mi Ae my second eldest sister came to Australia in 1991 and married a year later. They had little English speaking and writing skills and they had to save to buy houses to settle and raise their children. My mother and I came to Australia full of hopes and high expectations. However the reality was my sisters did not have sufficient financial ability and knowledgeable enough to help us although I must say they tried their best as circumstances would allow them to.
My mother endured may hardships and difficulties with my sisters and she helped my sisters by raising their children. In 1993, Mi Sun became pregnant and gave birth to her second son James, after a miscarriage and her eldest son was young, being just 4 years old so she needed my mother to help her caring her children while she was recovering from miscarriage and birth that followed. Three months earlier Mi Ae gave birth to her first baby so she helped her too. While this was happening, I was starting high school and she had to take care of me as well. She was often seem to be tired, but she was happy to help out her daughters and raise her grandsons and she was not concerned or had no understanding and knowledge abut her visa status which was already overstayed.
She was not concerned or worried about herself, during her stay in Australia her whole focus was on her daughters, me, grandsons and their well-being. She was typical old fashioned Korean mother, quiet, and devoted to her children but lacking knowledge and education to realize her own situation. We appreciated her devotion and efforts towards us but our ignorance and perhaps carelessness we did not make an attempt to make her stay in Australia permanently.
Shortly before she and I were taken to Villawood, a Korean man she knew from the church (by the way my mother is devoted Christian and also senior deaconess) stayed with us for a few months. When immigration officers came to our house, they were actually looking for him but since we lived with him, officers began to question us.
AS stated in your letter, you mentioned that we provided incorrect birthdays and incorrect answers however, most Koreans have two birthdays one according to the normal calendar and another for moon calendar traditionally used by Koreans and many other Asian people.
Hence birthdays provided to officers may have been birthdays according to moon calendar, which can differ considerably from the normal calendar’s dates and passport’s. Also imagine how frightened and surprised we felt during the whole ordeal. Here a teenage son and his late fifties mum facing stern faced officers from nowhere. I must stress the point that my mother and I never intended to provide incorrect information to officers it was just the at worst a misunderstanding and emotional and psychological effect of the circumstances must also be considered.
Second point you have mentioned is the fact that she remained unlawfully after her bridging visa had expired. At the time of bridging visa expiration, Korea suffered from the Asian economic crisis and she had nowhere to go and no one to support her in Korea. What can a woman in her early sixties with little education and without much money can do? So she was compelled to stay. May I point out that during her life both in Korea and here in Australia she has not convicted or engaged in any unlawful activities (other than mentioned in your letter)? She was just an old woman wanted to be with her children and deserve to be supported by us after her devotion and hard work she has done for us as our mother.
In late 2000, she heard devastating news about her third daughter married and living in Korea. She heard that her daughter was abused and beaten by her husband and she wanted divorce. Mother’s devotion to her children came into action as she decided to leave Australia and be with her daughter, although there was little hope of finding jobs or means of supporting herself financially.
This is why she left Australia on January 13th 2001
. However the situation in Korea was not as serious as she first thought and soon she began to miss her children in Australia especially he son who was just started his tertiary education. While she was in Korea, she became a volunteer of the church (Yeoido Full Gospel Church, one of the largest church in the world with over 750,000 congregation) and began to work in the kitchen of prayer house owned by the church serving thousands of people praying and worshipping God there.
Among these people, there was a person who lived in Australia for a few years told my mother about changing the spelling of the passport to gain new visa to enter Australia and feeling depressed and nostalgic about being separated from her beloved daughters and the son whom she gave birth to in her early forties, she, without realizing the seriousness of her actions and consequences, and in desperation, she applied for visa with changed name.
As I explained above, the whole blame for her actions that you have mentioned must be put on me and my sisters. It was our ignorance that made her to overstay her visa. All she has done wrong was being devoted mother to us and her lack of education and understanding of the situation.
She is well respected by her church people both in Australia and Korea (after nearly 4 years since she left, I and my sisters are still asked by people about her which speaks of how well she was received and respected by people) with 3 out of 4 children in here and now they are financially stable, she can enjoy her later years in here. Please do not let her deserved right to see and live with her children be denied.
Yours sincerely,
p.s. Above information has been prepared by:
Woojun Lin (the son of applicant)
Mi Sun An (the eldest daughter of applicant)
Mi Ae Moon (the second eldest daughter of applicant)
[Signatures appear below all names]
8.It is perhaps useful to be aware of the nature and extent of the Visa Applicant’s family; it is contained in a document entitled “Family Disposition” which was furnished to the Tribunal by Mr Lewis and it reads as follows:
Family Disposition
Name
DOB
Relationship
Marital Status
Residence
Me Sun An
27-12-1961
Daughter
Married
Australia
Dong Il An
14-04-1962
Son-in-law
“
“
Benjamin An
30-11-1989
Grandchild
child
“
James An
17-10-1993
“
child
“
Joshua
14-12-1998
“
“
“
Me Ae Moon
15-12-1963
Daughter
Married
“
Yong Man Moon
15-10-1960
Son-in-law
“
“
Jotham Moon
02-07-1993
Grandchild
child
“
Grace Moon
15-12-1995
“
“
“
Myo Hee Lim
14-09-1966
Daughter
Separated
Korea
Gu Yul Yoon
11-12-1992
Grandchild
child
“
Su Bin Yoon
30-12-1996
“
“
“
Woo Jun Lim
02-11-1981
Son
Single
Australia
9.Because to Australian readers, distinguishing the various persons involved by their names may at times be difficult I refer to Woo Jin Lim as “the son”. He is single and resident in Australia. Me Son An is referred to as “the eldest daughter”; she is married and has three children and she too is resident in Australia. The Applicant is the middle daughter; she is married and has 2 children and is resident in Australia. The “youngest daughter” (referred to by that term) is Myo Hee Lim who is separated, has 2 children and lives in Korea. The three children resident in Australia and being the son, the eldest daughter, and the Applicant are sometimes referred to in these reasons as “the Australian children”.
10.The only oral evidence was given by the Visa Applicant with the aid of an interpreter in the Korean language (and in fact there were different Korean interpreters on the 2 days of the hearing) and by telephone link to Korea.
B.Overview of the Evidence of the Visa Applicant
11.The Visa Applicant was born in 1939 so that she is now about 65 years old. She gave evidence at considerable length during the two days of the hearing. It must been noted at the outset that her evidence was quite extraordinarily unsatisfactory. Many questions resulted in “I don’t know” or “I don’t remember” answers; this was so even in respect of events which, one would have thought, would have been within her memory. There were often long silences culminating in an answer which was sometimes itself a question and sometimes an answer which bore little or no relationship to the question. In the space of only a few minutes she could and did give answers which were inconsistent with each other or inconsistent with other evidence. She was often referred to as an uneducated woman who had attended primary school only, and on the basis that as an uneducated woman, memory lapses could be forgiven. On the other hand she has worked in various occupations and at various times and has managed to settle most of her family in Australia, having come to Australia herself after her husband died. In other words she demonstrated that she is a woman of some determination and courage and not at all without resource. Her evidence in chief would suggest that she was a widow when she came to Australia; cross-examination revealed that she had been divorced prior to her husband’s death. I do not think that the Visa Applicant’s evidence was truthful; on the contrary it was wildly untruthful and was frequently made up as she went along. It was also incoherent. Both of the two Korean interpreters who assisted found it very difficult to cope with her evidence. I have not in preparing this decision waited for the transcript; I kept careful notes during the hearing, and the passages quoted in these reasons are taken from my notes. My notes may not accord precisely with the evidence recorded in the transcript but any differences will not be material. There is another reason why I propose to quote from the evidence and that is that it is only by these means that the nature of the Visa Applicant’s evidence can be fully appreciated. It will be noted in particular that there were times when her evidence made no sense.
12.The eldest daughter came to Australia (before the Visa Applicant first came to Australia) and after the former’s marriage; the Applicant came to Australia (also before the Visa Applicant first came to Australia) as a student. The Applicant first took an English course and then took a business studies course. The Tribunal was originally advised that both of the eldest daughter and the Applicant would give evidence, but with the assistance of an interpreter in the Korean language because neither is comfortable in English, even though they have both been in Australia for many years and even though both have studied in Australia. In the result neither gave evidence; for reasons set out later in this decision their decision not to give evidence was probably prudent.
13.The Tribunal was told on the first hearing day that the son would not be giving evidence on that day because he had an exam to write. He is an accountancy student at the University of Western Sydney. The Tribunal was told at one point that he is awaiting graduation and will then have only a board exam to write, and indeed that he has recently started work as a personal assistant at an accounting firm. As to why then he had another exam to write was unclear.
14.The Visa Applicant in broad terms attributed nearly all of the actions which were in breach of section 234 of the Migration Act 1958 (“the Act”) to her daughters. In respect of the false passport she attributed everything to a migration agent in Korea (name unknown) who was entrusted with the task of getting her back to Australia after she eventually returned to Korea. The Australian children, and in particular the two daughters resident in Australia, had they given evidence, would have been faced with a difficulty having regard to their mother’s evidence. She, the Visa Applicant, as I have said, attributed all of the relevant actions to them; they would have had to either deny that this was so or in the alternative would have had to admit that her allegations were true but in which case would have probably incriminated themselves. Had they given evidence, a warning against self-incrimination would in my view have been necessary. It is not surprising in the circumstances that they elected not to give evidence at all. It is however incumbent upon me to draw an inference under Jones v Dunkel (1959) 101 CLR 298 that the evidence of the Australian children would not have assisted the Visa Applicant and might well have been adverse to her. I have little doubt having heard the evidence of the Visa Applicant, that the Australian children and at least the two daughters resident in Australia (and probably the son as well) were at the very least were complicit in those actions.
C.The Visa Applicant’s Evidence; Examination in Chief
15.The Visa Applicant was born in Korea on 20 September 1939. She had a primary school education only and said that after school she married Chu Ha Lim, who died in 1990. They had 4 children.
16.The Visa Applicant said that after finishing primary school she became a housewife. This lead to a number of questions as to whether the Visa Applicant had married while she was very young and in her early teens. With some considerable difficulty, it emerged that she finished primary school when she was 16 and married at 25 (which would mean that she married in 1964). Subsequent evidence indicated that she married some years after that and probably in 1968. The daughters (the eldest daughter and the Applicant) were apparently born before the marriage. When she was asked early in her evidence whether the eldest daughter was born before her marriage, the Tribunal received the first of many “I don’t remember” answers.
17.The Visa Applicant’s husband had something to do with cutting metals in a factory. They moved to Seoul because of his job. The Visa Applicant before marriage helped her parents with housework and she also did farm work; at a later stage she said “I went farming”.
18.The Visa Applicant’s husband became ill and “so he stayed home and took medicine”. This according to her evidence had something to do with stomach ache. She did not in her evidence in chief, and as I have said, mention that she was divorced from him.
19.When asked whether she went out to work when her husband became ill she said that they rented rooms in their home and thereby “got money”.
20.Mr Lewis put it to her that her husband “died in 1990” and “you decided to go to Australia”. She answered that her eldest daughter moved to Australia when she married and that the Applicant came to Australia as a student. She and her son came to Australia on tourist visas in 1992 when the son was 12. The youngest daughter (who stayed in Korea) “organised everything”.
21.After 3 months in Australia the Visa Applicant returned to Korea but the son insisted on staying in Australia. As to how a 12 year old can insist in these circumstances on staying in Australia is altogether unclear. It is likely on the balance of probabilities that plans to settle the family in Australia were already in train. The son stayed while his mother was back in Korea with one of his sisters.
22.The Visa Applicant returned in 1993 again on a tourist visa. She stayed with the Applicant who was by then married and expecting her first child. The eldest daughter too was pregnant; moreover the eldest daughter had had miscarriages previously.
23.At or about this time, the Visa Applicant balanced her time between the two daughters resident in Australia, one of whom living in Sydney and the other in Newcastle. Both sons-in-law were working; one indeed was (and perhaps still is) a minister of religion.
24.The tourist visa granted in 1993 was valid as was the tourist visa granted in 1992 for 3 months but it was extended. She said "I think my daughters renewed my visa or something to that effect. My daughters did everything. I didn’t know what was going on. I don’t read English at all”.
And when asked who filled out the application forms she answered “My daughters – I didn’t do anything at all”.
25.When asked whether either of her daughters told her that she became illegal in 1994 she answered “I think so. I thought my children will look after these matter. I don’t know the language and I don’t know anything”.
26.As to which of her daughters worked or when and how much help she gave to each of them is entirely unclear. The probabilities are that neither (with young children) worked, or at any rate worked other than casually, and the Visa Applicant performed standard grandmotherly baby-sitting or similar duties at times and from time to time.
27.In 1996 the Visa Applicant and the son moved to a home of their own, but the Visa Applicant’s grandmotherly duties continued. Questions as to if, when and where the daughters worked were all answered with “I don’t know”. She said that she visited Newcastle once or twice a week.
28.In 1997 she was detained by the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”). She said that she was scared; when asked why she was scared the following exchange took place:
Why were you so scared?
I was told I was illegal and my son was young and I don’t know the language so I contacted Newcastle.
Did you know you were illegal?
My son told me that was why they came even though it was I was so busy that I couldn’t remember.
You were taken to Villawood?
Yes.
While you were there you applied for a protection visa and a bridging visa?
My daughters knew – I don’t know anything.
Who advised you?
My daughters knew.
Did you see a migration agent in Villawood?
No.
Did you sign any forms?
The person who came to my place asked me to check something.
When in Villawood you applied for a protection visa and a bridging visa; who explained them?
I cannot remember.
29.And then the following exchange took place:
Do you remember the protection visa being refused?
I don’t know. I didn’t know such a thing. I contacted my daughters.
So you don’t remember the protection visa being refused and review being sought by the RRT?
I don’t know anything.
Do you realise you breaching immigration law at the time?
I realised I was illegal later on but I didn’t know anything. I though my daughters would look after this. I didn’t know anything.
Did you leave Australia to go back to Korea in January 2001 and why did you go back?
My youngest child was having misfortune. She was having court cases and domestic difficulties with her husband.
How did you support yourself in Korea?
I was getting financial assistance.
From whom?
From home. A little bit came out of my house.
30.It may be noted that evidence as to money matters was generally even vaguer (if that is possible) than her other evidence and it is altogether impossible to reconcile how she managed and how, by way of example, she was able to send the Applicant to Australia as a student.
31.As to what work the Visa Applicant did while in Korea and how much she was paid was totally unclear. She said that she did voluntary work; however she then said that it was work for which she was paid.
32.the following exchange then took place:
Did you apply to come back to Australia?
I think so.
Who helped you?
When I was praying I met someone and I told him I wanted to see my grandchildren. He introduced me to an agent who asked me for money and then more money. When I do this voluntary work I get a bit of money.
Did he apply for a passport for you?
I gave him everything. I think so.
Sometime after the RRT had affirmed the decision did you apply to take part in a class action?
I don’t know.
Do you know Adrian Joel?
I don’t know.
Do you know anything about a class action?
I don’t know.
You gave that person money; is it possible that your daughters applied for a parent visa?
There is no one but the daughters.
33.The Visa Applicant admitted that she had 2 passports most of the details in respect of which are the same but where the names are different. When asked whether she sought to mislead the government about the spelling of her name in one of the two passports her answer was “I didn’t do it so I don’t know”. And when asked whether she was aware of the spelling in the second of her passports her answer was “because I didn’t do it I don’t know”.
34.The evidence continued:
You saw your passport?
I don’t know.
Is the Korean writing different in the 2 passports?
Because my duty is looking after everything I don’t know.
There was a letter after the passports dated 26 March 2001 from the embassy in Seoul.
I think my daughter received it.
It’s a refusal of a visitor visa.
My daughter got it.
Did she tell you why the visitor visa was refused?
I was told because I was illegal.
Did you later apply for a parent visa?
I don’t know.
Did someone tell you they were applying for a parent visa?
I don’t think I heard about it.
Do you know why we are here today?
Because I was doing something wrong.
What was wrong?
I think I was illegal.
D. The Visa Applicant’s Evidence; Cross Examination
35.If the Visa Applicant’s examination in chief was difficult the cross examination was considerably more difficult.
36.At the commencement of her cross examination she said that she did not know the year of her marriage. When it was put to her that in her application she stated that her marriage took place in 1968 (and not 1964) she answered “I am not sure what’s going – it’s so long – I didn’t fill in the form”.
37.I do not intend to attempt to detail her evidence about work activities. It took on aspects of the surreal. The only clear point to emerge is that at some time or times she performed some work in a restaurant that might have been the preparation of certain dishes. She could not recall how much she earned.
38.As to money matters the Visa Applicant’s evidence was, as I have said, simply beyond comprehension. She admitted that the financial situation of the family was precarious; she worked now and then and her husband was sick. As to how they managed at all and leaving aside sending a daughter to Australia to study is impossible to reconcile,
39.Some of the “I don’t know” answers passed all possible understanding. The following exchange is relevant:
What did you do when you returned to Korea?
I did a little bit of work and rested.
Where did you work?
At a friend’s place.
What sort of place?
It was a praying place and I worked in the restaurant.
How long did you work there?
From 2001.
[The question was then repeated]
In Korea I worked at praying place and I went home and came back.
Were you paid for this work?
No.
40.It was a this time that the Visa Applicant spoke of rental from her home of 300,000 won per month which she said and in accordance with the relevant exchange rate would have been about A$400 per month. At a later time she denied all knowledge of exchange rates.
41.As to work the following exchange is relevant:
Your evidence was that you did voluntary work and you got paid, so it’s not really voluntary.
Sometimes it’s voluntary but if I do a lot of work, I get paid for it. I got 300,000 of 400,000 or 200,000.
So you got $300 per month and so you can se it’s not voluntary.
It depends on the work – sometimes its voluntary sometimes I got paid.
Did you pay for your ticket to come to Australia?
Yes.
You said that it was your daughter who paid.
My daughter did everything and she paid and I helped with the money.
42.She was asked when she first realised that she was illegal in Australia. She answered “after expiry when there was some talk going on about refugee visas”.
It will be noted then that her evidence was extremely unhelpful. She knew nothing of the protection visa application although she agreed that she was never a refugee. She knew nothing of the referral of the refusal of her refugee application to the Refugee Review Tribunal and she knew nothing about her involvement in a class action run by Adrian Joel.
43.She admitted that she knew she was illegal when she was detained. When she was asked whether she gave the compliance official an incorrect date of birth she answered “because I don’t know the language and my young child tried to say something”. She was then again asked whether she gave an incorrect date of birth when she was apprehended in 1997. A long silence was followed by this answer: “I don’t know but it seems he was trying to contact his sisters”.
44.The evidence as to Pak Sun Lee (“Pak”) achieved yet another level of incomprehensibility. It seems that when the Visa Applicant was detained DIMIA was in reality seeking or perhaps also seeking Pak, who was also illegally in Australia. Her evidence in the space of a short while was that Pak was related, was not related but came from the same town, did not live with her and her son and “came and went when he pleased”. Her evidence in this context was altogether untruthful (even more so, if this is possible, than at other times). The probabilities are that she knew Pak was unlawful and that she knew DIMIA was looking for him.
45.The Visa Applicant’s protection visa application contains the grounds on which she contended that she was a refugee in the following (amazing) terms:
I left Korea because I was in fear for the life of my son and my own life because of my religion.
My husband was neither Christian of Buddhist. However, his sisters (my sisters-in-law) were Buddhists. When my husband died in 1990, my sisters-in-law spread that he died because I am Christian. They were using sorcery and magic. They also tried to kill me. Furthermore, because my husband was the only man in his generation in his family, he was very important according to our culture. Therefore, when he died, my son, who is the only young male in his generation, therefore he is very important, my step family tried to take my son to convert him to bhuddisme and to raise him in their tradition. Therefore, they threatened me to be killed if I do not give my son to them, therefore I escaped Korea, in particular because they are very influancial people and they can harm me and my son really.
46.It must be remembered that the protection visa application was filed some years after the Visa Applicant had come to Australia and then only after she had been detained. It was demonstrably untruthful in every particular. It was filed by Fayez Philippe Hanna of A.M.I Migration Consultants, Suite 10, 5 Featherston Street Bankstown. That protection visa was so demonstrably untruthful that the migration agent in question cannot possibly have had even the faintest belief in its truth; it was of course as is so often the case made for one purpose only and that is to gain time. The Respondent is asked to bring this decision to the attention of MARA for investigation.
47.Further as to her protection visa application, the following exchange took place:
Why didn’t you claim to be a refugee earlier? Why only when you were detained?
I honestly can’t say that I was a refugee. I can’t understand English and how could I say that?
How much did you pay the migration agent?
I don’t know. I don’t know anything. I can’t remember.
How much did you pay?
I don’t know.
Did your daughters tell you?
Sometimes yes sometimes no.
Did the agent come to the centre to see you?
I don’t think so.
You were released from the detention centre; do you know why?
My daughters told me.
You were released were you not and you were released because you claimed to be a refugee?
My daughters did it.
E.The Visa Applicant’s Cross Examination Resumed on the Second Day
48.I commence with the following exchange of evidence:
Did you meet the migration agent who prepared your application?
Do you mean the migration office?
I mean the migration agent.
I met the migration agent there but I don’t think I met the migration agent there
Where is there?
At the migration office.
At the detention centre?
Yes.
What did you tell the migration agent?
Since I can’t speak English my name was rechecked and I didn’t tell anything.
You made claims to be a refugee. Did you tell the agent what those claims were?
I don’t recall.
Do you recall signing the declaration for a refugee visa underneath that?
Well I am afraid I can’t recall.
Do you remember signing any forms?
Where?
You made a number of applications for visas did you ever sign any forms underneath that?
I am afraid I can’t remember. I’m afraid I can’t remember which year or where or anything.
The evidence proceeded in this fashion for some considerable period.
49.The Visa Applicant returned to Korea in 2003 in order to assist her youngest daughter with marital problems. Within 4 weeks of her return to Korea, she applied for a tourist visa but using a new passport in a different name. When asked why she needed a new passport she eventually said that the agent did so. She did not know the name of the agent. When asked why this occurred the following exchange took place:
How soon did you decide to return to Australia?
Well I wanted to return to Australia because I miss my children a lot.
How soon after your return did you decide to return to Australia?
I prayed and wished to return to Australia soon.
50.A passage from T page 81 was read out to her and in particular the passage as to how the second and fraudulent passport was procured. And then the following exchange took place:
So why did you need a new passport?
So far as I know it had expired.
Why not renew it?
This is something I didn’t know.
Did you deliberately change the spelling because you knew you couldn’t get in on the old passport?
This is something I don’t know.
51.It was at this point that the Visa Applicant asked for a short extension and it was granted. When the hearing resumed she was again cross examined as to the new passport and the following exchange took place:
How did you come to obtain that passport?
All I did was I paid and I entrusted it to the person. I entrusted everything to this person. All I wanted to do was return to Australia as soon as possible. I do not know the name.
How much did you pay?
In our money 1 million won.
How much is that in Australian dollars?
This is something I do not know.
Did you think 1 million won is reasonable to get a visitor’s visa to Australia?
I was asked for more. Originally I was asked to pay that amount and then I was asked to pay the same amount again.
2 million won?
I think so.
Is 2 million won reasonable for a visitor’s visa?
Yes I think that’s okay.
52.It was put to the Visa Applicant that in her application (T page 91) she specified a passport by reference to an expiry date in 1997 and she was asked whether she renewed her passport after 10 March 2003. The answer was “I didn’t know when it happened”.
53.She was then asked the date of expiry of her real passport and her answer was “I didn’t know. I didn’t deal with it”.
F.The Character Test and Analysis of the Evidence
54.On the second hearing day Mr Lewis (correctly in my view) conceded that the Visa Applicant could not pass the character test. How is one to analyse evidence of this nature especially when it was so confused (and confusing) and so remarkably unhelpful?
55.It is quite easy to discern a determined and overwhelming desire on the part of the Visa Applicant to live in Australia. That she wanted to do so is understandable given that many of her family members (but not all of them) are now resident in Australia. (It must be remembered that her youngest daughter and the youngest daughter’s children are still in Korea)
56.To stay in Australia the Visa Applicant was prepared to remain in Australia after her visa expired (and her evidence indicated that she knew perfectly well that tourist visas are issued for short periods). When she was detained she made an application for a protection visa on grounds which were false (and indeed she admitted that she was not a refugee). Her application having failed she then sought its review by the RRT, however she did not go so far as to appear to give evidence at the hearing before the RRT. When the RRT affirmed the refusal she joined an Adrian Joel class action. When that failed she simply stayed on in Australia illegally for about 3 years thereafter.
57.Within 4 weeks of her return to Korea (which was by no means voluntary as she described) she sought a tourist visa to return to Australia. To make that application she needed a new passport. It is hardly likely that everything was done by an agent (name unknown) to whom she paid 1 million won (and refused to pay another 1 million won). She knew perfectly well that she could not have hoped for re-entry to Australia under her true identity.
58.The Visa Applicant attributed most if not all of the actions to which I have referred to her Australian daughters. This is possible, at least to some extent although it is hardly likely that a woman such as this had no idea of what was happening. The failure of the Australian daughters, and for that matter the son to give evidence, indicated that the Visa Applicant was not an innocent party. Put in succinct terms the Visa Applicant breached section 234 of the Act on various occasions. The penalties prescribed for section 234 of the Act are such that I must of necessity regard her evidence as very serious. I include in this context the fact that her evidence before me was blatantly evasive and untruthful.
59.The Visa Applicant is simply one of a number of people who have desired to live in Australia albeit not having, even remotely, the necessary qualifications. That she did not have the necessary qualifications did not daunt her and she simply determined that she would stay in Australia and to do so she was prepared to breach the law as much and as often as was necessary. This included the procurement of a false passport. That behaviour of this nature (and including as to false documentation) is by no means isolated in respect of applications such as this can be seen by way of examples from Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239 and also In Soo Cho v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 112.
G.Direction – Visa Refusal and Cancellation Under Section 501 – No. 21 (Direction 21)
60.References to numbered clauses in this part G should be construed as references to Direction 21.
61.The primary considerations are set out in clause 2.3 of Direction 21 as follows:
2.3 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.
62.Clause 2.3 must be read in conjunction with clause 2.5 reading as follows:
2.5 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);
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
63.In the context of deterrence and recidivism generally Ms Koya referred me to a number of decisions and particular clauses in those decisions. I refer in this context firstly to Beale v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714 (a decision by Deputy President Wright); clause 33 reads as follows:
33. In considering whether or not there is a 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.
64.I refer next to In Soo Cho v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 112 which was one of my decisions and where clause 46 reads as follows:
While I regard the risk of recidivism (and see clause 2.5(b)) as not being high, it cannot be discounted entirely having regard to her illegal conduct over so many years. Her total disregard of Australian law is demonstrated in the starkest possible terms by what happened when her husband was detained in November 1989. She was allowed to remain to enable her to care for her children but subject to conditions which, as I have indicated, she simply ignored.
65.In Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935 clause 47 reads:
47. The Applicant in his evidence spoke of others obtaining false passports in South Africa and travelling to countries using the false documentation. He spoke of people to his knowledge living in Australia by virtue of the use of false identity material. These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. 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 favourably considered.
66.And in Re Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575 clause 26 reads:
26. As to the expectations of the Australian community, it is my view that this would include an expectation that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled. Ms Lumagbas made a false application and compounded this by failing to notify the Department or other parties of this fact, despite having had ample opportunity to do so. The groundless application was considered and pursued up to the level of personal intervention by the Minister. Knowing that there was no basis for this course of conduct, Ms Lumagbas showed a complete disregard for Australia's migration laws. All this was done for no reason other than that she wished to be able to work in this country and was looking for short cuts to that goal.
67.See too and in much the same sort of context Susilo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 495 where clause 144 reads:
144. In relation to the expectations of the Australian community, I accept that there may be a minority sympathetic view that the Susilo parents should after all this time be allowed to stay here. That view would necessarily be based on the proposition (at least in part) that the law can be overlooked if only one can evade the authorities for long enough. Expressed thus it is easy to see how fallacious it is. In my view the majority of the Australian community knowing the facts and in particular the manner in which Benny returned to this country after being deported it would expect that the visa be refused.
68.I refer also to Hanna v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 257 where clause 33 reads:
33. The Tribunal does not accept that the misleading information was as a consequence of an inadvertent failure to disclose. The non-disclosure was intentional. It may well be that it was at the behest of the Review Applicant that the Visa Applicant behaved as he did. It may also have been at the behest of his family. The fact is however, that he did behave dishonestly and did not disclose relevant information and maintained the non-disclosure even up until the second interview with an officer of the Respondent. It provides no assistance to the Visa Applicant to say that he relied on the Review Applicant and his family's advice. It was he who signed the application. It was his application. As earlier mentioned, he well knew that what was contained in the application was not correct and that he had not disclosed information that would be relevant to a consideration of the matter by the Respondent. It is of little assistance to him to say that he now sees the error of his ways. The misleading information was put to him by an officer of the Respondent only after extensive investigations had been conducted. Such investigations were not assisted by the Visa Applicant not disclosing the name that he had used whilst in Switzerland.
69.All of the Visa Applicant’s actions were designed to achieve one end and that is to reside in Australia. To do so she trod a path rapidly becoming well-worn and including, as I have said, false documentation. (See again Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239 and In Soo Cho v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 112)
70.I do not think she poses an unacceptable risk to the Australian community or that recidivism is a serious problem although given her preparedness to ignore the law as often as is desirable, it cannot be discounted.
71.Deterrence is a major problem area in a case such as this. I do not think that this decision will deter anyone in Korea currently embarking on much the same path. Recent experience involving Korea (and for that matter other countries) indicates that to live in Australia is so desirable that it is thought to justify dishonest conduct of any kind. Australia of course has the right to determine who can and who cannot take up residence in Australia. These are mere words, and having no real meaning to persons such as the Visa Applicant and her family. To grant a visa would on any basis send a message which would be grossly improper.
72.As to clause 2.12 I do not think that the Australian public would approve the grant of the visa sought in these circumstances although there might be a minority view (but it would be only a minority view) that this elderly lady should after all be allowed to rejoin her family (or to be more exact) most of it. It must be remembered that the youngest daughter and her children are still in Korea; the marital problems encountered by her are no doubt responsible for her being in that country.
73.It is not possible to assess hardship to the three children in Australia. They are all adults and there is no reason why (financial circumstances permitting) they cannot visit the Visa Applicant in Korea as often as they please. Their own hardship must in any event be discounted by the fact that all three of them appear to have been complicit, to a greater or lesser extent, in her illegal conduct.
74.This is not a case in which it is possible to contemplate the exercise of the discretion in favour of the Visa Applicant and accordingly the decision under review must be affirmed.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 23 and 24 June 2005
Date of Decision 7 July 2005
Solicitor for the Applicant Gareth Lewis
Solicitor for the Respondent Stella Koya
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