Oh and Minister for Immigration and Border Protection (Migration)

[2016] AATA 1079

Oh and Minister for Immigration and Border Protection (Migration) [2016] AATA 1079 (23 December 2016)

Division	GENERAL DIVISION
File Number	2016/5535
Re	Joonmo Oh
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	23 December 2016
Place	Sydney

The decision under review is set aside and in substitution, the Tribunal decides that the discretion under s 501(1) of the Migration Act 1958 (Cth), to refuse to grant Mr Joonmo Oh a Partner (Temporary) (Class UK) visa, should not be exercised.

........................[sgd]................................................

Dr L Bygrave, Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visa refusal – application for partner visa – failure to pass character test – discretion to refuse visa on character grounds – undisclosed criminal record upon re-entry into Australia – protection of the Australian community – evidence of rehabilitation – low risk of reoffending – expectations of Australian community – best interests of minor children – impact on applicant’s family – expert evidence of negative impact of family separation – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth), s 501(1)

CASES

Anaki and Minister for Immigration and Border Protection [2016] AATA 693

Do and Minister for Immigration and Border Protection [2016] AATA 390

LMYW and Minister for Immigration and Border Protection [2016] AATA 936

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Dr L Bygrave, Member

23 December 2016

INTRODUCTION

1. The applicant, Mr Joonmo Oh, is a 30 year old male citizen of the Republic of Korea.

2. The applicant first arrived in Australia on 26 February 1998 under the name of Se Hoon Oh on an Electric Travel Authority (Visitor) visa. He subsequently departed and re-entered Australia under the names of either Se Hoon Oh or Joonmo Oh in 2001, 2007 and 2009.[1]

   [1] Exhibit G1 at G17 and G18.

3. On 14 August 2012, the applicant lodged an application for a Partner (Temporary) (Class UK) visa.

4. A delegate of the Minister decided on 4 October 2016 to refuse to grant the applicant a visa pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act).

5. In accordance with s 500(1)(b) of the Act, the applicant applied to the Tribunal for a review of the Minister’s decision on 14 October 2016.

6. The matter was heard in Sydney on 19 December 2016. The applicant attended the hearing in person and had legal representation. The applicant’s wife also gave evidence to the Tribunal and she was assisted by an interpreter of the Korean language.

   BACKGROUND

7. The applicant was born in Dongdoocheon, Korea in December 1985 and named Se Hoon Oh. He has no siblings.

8. The applicant first arrived in Australia with his parents at the age of 12 years. His parents intended to settle in Australia and establish a business but unfortunately, their savings were gambled by a relative. This placed significant financial pressure on his parents and they divorced when he was 15 years old; his mother returned to Korea and he remained in Australia with his father.

9. Following these events, the applicant felt abandoned by his mother and father, emotionally unsettled and ‘lost’.[2] He began associating with anti-social peers, staying away from home and defying his father. In 2002, when he was aged 16 years, he was charged with negligent driving offences and fined. In 2003, at the age of 17 years, he was convicted of a robbery offence and sentenced to a suspended control order.

   [2] Exhibits G1 at G16, A15 at para 5.

10. In 2004, the applicant applied for and was refused a Special Eligibility (Residence) (Close Ties) (Subclass 832) visa. He then returned to Korea and changed his name to Joonmo Oh because his parents believed his name had caused his misfortune. When the applicant returned to Australia in 2007 and 2009, he did not disclose his change of name or criminal history.

    Court record

11. The National Police Certificate dated 28 November 2014 recorded:

    (a)On 16 December 2003, the applicant was convicted of the offence, ‘Robbery Armed With Offensive Weapon’ in the Bidura Children’s Court and sentenced to a control order for 12 months, with the sentence suspended for 12 months.

    (b)On 16 September 2002, the applicant was convicted in Burwood Local Court and fined a total amount of $500 for the following offences: ‘Negligent Driving’, ‘Not Give Particulars to Owner of Damaged Property’, and ‘Provide False / Misleading Information’.[3]

    [3] Exhibit G1 at G5.

12. A record check from the Korean National Police Agency undertaken on 18 March 2015 stated that the applicant is ‘wanted for a violation of the Military Service Act’ and ‘[p]rohibited from departure for a foreign country … as a part of administrative sanction against a violation of the Military Service Act, on February 11, 2011’.[4]

    RELEVANT LEGISLATION, ISSUES AND CONSIDERATION

    [4] Exhibit G1 at G10.

    The power to refuse a visa

13. Pursuant to s 501(1) of the Act, the Minister may refuse to grant a visa if the applicant does not pass the character test as defined in s 501(6) of the Act.

14. Relevantly, s 501(6)(a) of the Act prescribes that a person will not pass the character test if they have a ‘substantial criminal record’. The phrase ‘substantial criminal record’ is defined in s 501(7) and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more.

15. The Minister refused the applicant’s visa on character grounds because he has a ‘substantial criminal record’.

    Issues

16. The determinative issues for the Tribunal in this matter are:

    (a)whether the applicant passes the character test as defined in s 501 of the Act; and

    (b)if not, whether the decision to exercise s 501(1) to refuse the applicant’s visa is the preferable decision.

    Does the applicant pass the character test as defined in s 501 of the Act?

17. The applicant was convicted on 16 December 2003 for the offence of ‘Robbery Armed With Offensive Weapon’ and sentenced in the Bidura Children’s Court to a 12 month control order. A control order in the Children’s Court is a full-time custodial sentence.[5] I note that the applicant’s sentence was suspended for 12 months and he was released from custody on the condition that he enter into and comply with a good behaviour bond.[6]

    [5] Exhibit G1 at G6, p 57.

    [6] Exhibit S1 at S4.

18. As the applicant has been sentenced to a 12 month control order, he has a ‘substantial criminal record’ as defined in s 501(7) of the Act. I am therefore satisfied that the applicant does not pass the character test as set out in s 501(6) of the Act.

    Is the decision to exercise s 501(1) of the Act to refuse the applicant’s visa the preferable decision?

19. When considering whether to revoke the visa refusal decision, I am required under s 499(2A) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

20. The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in this country.

21. The Principles set out in cl 6.3 of the Direction provide a framework to approach deciding whether to refuse a visa under s 501(1) of the Act. The Principles state:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non­-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)  A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.

    (4)  In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)  Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.

    (7)  The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non­-citizen’s visa should be cancelled, or their visa application refused.

22. Informed by the Principles, I must take into account the primary considerations in Part B of the Direction in determining whether to refuse a non-citizen’s visa. The primary considerations are:

    (a)Protection of the Australian community from criminal and other serious conduct;

    (b)Best interests of minor children in Australia affected by the decision; and

    (c)Expectations of the Australian community.

23. Part B also sets out a list of other considerations that must be taken into account; relevantly, this includes the impact on immediate family members who are Australian citizens and/or permanent residents of Australia (cl 12.2(1) of the Direction).

24. Clause 8(2) of the Direction stipulates that information and evidence from independent and authoritative sources should be given appropriate weight in applying the primary and other considerations.

    Protection of the Australian community

25. The Government’s commitment to protecting the Australian community from harm by non-citizens is set out in cl 11(1) of the Direction and requires that I consider:

    (a)the nature and seriousness of the applicant’s conduct to date; and

    (b)the risk to the community should the applicant commit further offences or engage in other serious conduct.

26. I will first consider the nature and seriousness of the applicant’s conduct to date.

27. As set out in paragraph 11 of these reasons, the applicant committed offences in 2002 and 2003 when he was a juvenile.

28. In 2002, when the applicant was 16 years of age and held a learner’s drivers licence, he drove a car alone and was involved in an accident. Police were called and the applicant was convicted and fined for negligent driving, not giving particulars, and providing false and misleading information.

29. In 2003, when the applicant was 17 years old, he was charged and convicted of armed robbery with an offensive weapon. A Facts Sheet from the New South Wales Police Service described the applicant’s co-involvement in the offence which included using a replica firearm in a robbery offence that caused the victim extreme distress.[7]

    [7] Exhibit G1 at G7.

30. This was a serious criminal offence. Although the firearm was a replica and could not have been used to physically harm the victim, the incident would have caused the victim significant psychological distress if he feared he may be killed.

31. In a written statement dated 2 December 2016, the applicant explained the circumstances of his charges of negligent driving and robbery armed with offensive weapon. He said he is ‘deeply shamed of what I have done in the past’ and it ‘will not happen again’.[8]

    [8] Exhibit A11.

32. At the Tribunal hearing, the applicant affirmed this statement and said that he would never commit these offences again as he is now reformed into a responsible father and husband. He acknowledged the robbery offence was very serious as it was an unprovoked attack on someone at night and expressed remorse for his actions.

33. I have regard to a report signed by the Manager, Stanmore Intensive Programs Unit at the New South Wales Department of Juvenile Justice on 16 November 2004. This report is independent and authoritative, and I therefore place significant weight on this evidence. The Unit, which specialises in counselling young offenders to take responsibility for their offending behaviour and develop strategies to avoid future offending, supervised the applicant during the period of his good behaviour bond.

34. The report described the applicant’s positive engagement with counselling and casework interventions to address risk factors that contributed to his past offending behaviour. It noted that the applicant had assumed responsibility for his offending, and was able to reflect on the impact of his offending on the victim of his offence and express significant remorse for his actions. The report also explained the context of his family issues as follows:

    [The applicant] appears to be a young man who has experienced significant hardships over recent years. [He] and his family migrated to Australia in the anticipation that they would enjoy a better quality of life, with increased opportunities and prospects. However, it would appear that since their arrival to Australia they have been confronted with ongoing obstacles in their attempts to achieve such goals.[9]

    [9] Exhibit G1 at G15, p 112.

35. There is no evidence before the Tribunal that the applicant has committed any criminal offences since 2003. Following the refusal of a Special Eligibility (Residence) (Close Ties) (Subclass 832) visa, the applicant was voluntarily removed from Australia in November 2005.[10]

    [10] Exhibit S1 at S14, p 133.

36. The applicant legally changed his name to Joonmo Oh in Korea before traveling to Australia for approximately one month in 2007. He then studied hotel management in Switzerland before returning to Australia in 2009.

37. When the applicant entered Australia in 2007 and 2009, he did not declare his change of name or his criminal convictions. The Minister submits and the Tribunal concurs that the applicant’s non-disclosure of this information to the Australian immigration authorities is extremely serious.

38. The applicant confirmed at the Tribunal hearing he was aware that if he declared his history to the immigration authorities in 2007 and 2009, he would not be allowed into Australia. He said he wanted to return to Australia to visit his father and cousins, and because Australia is where he grew up and feels at home. He acknowledged his non-disclosure of his history to the authorities was a mistake and he was ‘not thinking straight’ at the time.

39. I note that in his visa application dated 14 August 2012, the applicant declared his previous name and his involvement in an incident under his previous name.[11] I find that this admission to the Department of Immigration and Citizenship in 2012 contributes towards mitigating the seriousness of his non-disclosure in 2007 and 2009.

    [11] Exhibit G1 at G4, pp 31 and 32.

40. The applicant is also wanted in Korea for a violation of the Military Service Act in 2011. The applicant told the Tribunal that military service is compulsory in Korea. As he has not yet undertaken this requirement as a Korean citizen, if he returns to Korea he will be detained at the airport and required to undertake two years military service.

41. The applicant currently receives significant support from family, friends, local community church groups and cultural networks; this support is evident in the numerous character references provided to the Tribunal. Almost all of these references state their knowledge about the applicant’s criminal behaviour and his remorse for his offending. References describe the applicant as a wonderful father and loyal husband, and a responsible, kind and respected member of the community.[12]

    [12] Exhibit G1 at G23, pp 128, 130-131, 135-136; Exhibits A1, A2, A7, A8 and A9.

42. References from work supervisors and colleagues praise his ‘professional attitude and pleasant demeanour at work’, state he ‘never demonstrated any negative or aggressive behaviour’, and describe him as pleasant, responsible and an invaluable support in the workplace.[13]

    [13] Exhibit G1 at G23, pp 129, 133, 134; Exhibits A3, A5, A6 and A14.

43. I am satisfied that the nature of the applicant’s offences in 2002 and 2003, and his non-disclosure of his name change and past conduct to Australian authorities in 2007 and 2009, is a matter of serious concern. While the applicant has not completed compulsory military service in South Korea to date, I acknowledge that he would undertake this service if he returns to Korea and so place limited weight on this issue.

44. As I am required to examine the ‘applicant’s conduct to date’, I find that the seriousness of his offences in 2002 and 2003 must be understood within the context of his young age and difficult circumstances at home during this time, and his subsequent remorse. I also accept that, since 2012, the applicant has demonstrated positive behaviour as a respected husband, father and employed member of the community.

45. In accordance with cl 11(1)(b) of the Direction, I must consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

46. A psychological assessment of the applicant by Mr Bradley Jones (Forensic Psychologist) dated 10 December 2016 reported that:

    Mr Oh currently poses a low risk for committing criminal offences relative to other offenders. Mr Oh’s previous offending occurred when he was in his mid adolescence, vulnerable to being led by anti­-social peers, was without a strong parental influence and subject to the impulsive, defiant and exploring behavioural patterns often observed in mid to late adolescence.

    Consistent with research into age, maturity and offending Mr Oh has traversed his adolescence to enter adulthood and has established himself with pro-social behaviours expected of productive members of society.

    …

    Mr Oh’s offending occurred when aged seventeen (17) years and since that time [he] has embarked upon expected prosocial behaviours, education and life choice and responsibilities consistent with a prosocial life. My assessment has not identified any entrenched criminal proclivities or propensity to engage in offending behaviours. Rather my assessment identifies Mr Oh as a well adjusted, mature adult displaying prosocial values and behaviours consistent with what is expected of society generally. [emphasis added][14]

    [14] Exhibit A15, paras 25, 26 and 33.

47. This psychological assessment and the character references provided to the Tribunal show the applicant is in a very different situation now to when he offended as a juvenile. He has matured into a caring husband and father to two young daughters, established employment as an optical dispenser, and is considered a responsible member of his local and church community.

48. Based on the applicant’s unblemished criminal record over the past 13 years and his disclosure of his past behaviour in his visa application in 2012, I am satisfied that the likelihood he will reoffend is very low.

1. Giving appropriate weight to all the evidence before me regarding the nature and seriousness of the applicant’s conduct over the past 14 years and the low risk he will commit further offences, I find that these factors weigh in the applicant’s favour under the primary consideration of the protection of the Australian community.

   Interests of minor children in Australia affected by the decision

2. Clause 11.2(4) of the Direction sets out the factors that I must consider in relation to whether revoking the cancellation decision is, or is not, in the best interests of a child affected by the decision. Relevant to this matter are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.

3. In 2012, the applicant married Seong Yeon Kwon. Ms Kwon is a permanent resident of Australia and sponsored her husband’s visa application. The applicant and his wife have two daughters, aged four and a half years old and nine months old, who were born in Australia and are Australian citizens.

4. Mr Oh is clearly anxious to reunite with his daughters and wife. At the Tribunal hearing, he spoke about his relationship with his wife as ‘perfect’ and mentioned that they rely heavily on each other to raise their children. He is an active and capable father who works full-time, sharing the responsibility of household duties and responsibilities with his wife, who also works part-time. In an undated written statement provided in support of his visa application, the applicant recounts his daily routine, in particular the care provided to his children and his active involvement in the family household. Among other things, he details caring and looking after his children, playing and reading with them, preparing dinner for the family, and taking the family out for a drive on his day off work.[15]  

   [15] Exhibit G1 at G25.

5. The applicant’s evidence was supported by his wife, who also described a very good relationship between her husband, herself and their daughters. In a written statement tendered on 19 December 2016, Ms Kwon noted:

   I have been emotionally and spiritually enlightened since establishing a family with my husband. His fatherly presence to our daughters and his unconditional love towards me has helped me understand what it truly means to be a part of a family. Even during the times when I had travelled to Korea with my eldest daughter in the past for a short period of time, I felt hollow and empty. I strongly came to recognise the strong presence that my husband had in both mine and my daughter’s life.

   I cannot imagine a life without the presence of my husband in my life. Even worse, without the presence of their father, our daughters will never experience being children to a loving father. My husband will also be removed from fatherhood, and consequentially, our family will face tremendous hardships both emotionally and psychologically.

   …

   If my husband returns to Korea, my daughters and I will suffer greatly emotionally, mentally and financially. Our lives will become meaningless and it will be impossible to plan a future in our lives. My husband and I have always regarded Australia as our home and the home for our daughters. Australia is where we dream our future as a family unit.

   It is only when our husband remains in Australia that we can plan our future and create meaning into our lives. My daughters and I are fully dependent on his presence here in Australia as he is what truly completes our family.[16]

   [16] Exhibit A12.

6. Character references also support the close relationship between the applicant, his wife and his daughters. Some references observed that the applicant’s wife and children are ‘badly missing his presence and are struggling to cope without him’, and have been under immense financial and emotional pressure since he has been in detention.[17]

   [17] Exhibits A7 and A8.

7. A letter from the Juan Family Day Care dated 14 November 2016, the childcare centre attended by the applicant’s daughters, reported that the older daughter is missing her father:

   …I have noticed the first child … talking to herself, mumbling “I miss my daddy”. Sometimes she would just sit quietly by herself and stare into the distance, which I had never seen it [sic] happen before … She used to spend a lot of time with Joon Mo Oh whenever he had a day off work she would always tell her friends episodes of her going to the movies, theatrical place, and traveling to places with her dad.[18]

   [18] Exhibit A4.

8. Ms Sharon Rasco (Registered Psychologist) provided a letter dated 20 October 2016 after an appointment with Ms Kwon and her older daughter on 18 October 2016. The letter stated that Ms Kwon is currently ‘exhibiting symptoms of an acute stress reaction, including “extremely severe” depression, anxiety and stress symptoms’ after the applicant was detained on 13 October 2016. Ms Rasco also reported that:

   … [Older daughter] has been experiencing emotional distress, grief, confusion, general insecurity and anxiety, and separation anxiety from both parents. Her symptoms include bouts of intense crying, irritability, regularly asking where her father is, waiting for him at the usual time he comes home from work and constantly checking that her mother is still present (eg. having carers ring her mother at work so she can talk to her). [Older daughter’s] understandable upset affects the seven-month-old baby … who then becomes distressed. [Younger daughter] (in my/general psychological knowledge, and from empirical research) is also sensing the significant changes in her family unit and environment, and experiencing developmentally harmful distress. [emphasis added][19]

   [19] Exhibit A10.

9. Ms Rasco made the following general comments about children’s emotional needs:

   All children (and parents) need a secure emotional base. It is clearly understood through empirical studies, and cannot be overstated, that separating a parent and child has profoundly negative short and long term effects on children, according to their developmental age/phase. The more traumatic the separation, the more likely there will be significant negative developmental consequences with a heightened risk of psychological, emotional and physical vulnerability. Children who have suffered traumatic separations from their parents may in time display regressive behaviour, low self-esteem, general insecurity, a general distrust of others, mood disorders (including depression and anxiety), socio-moral immaturity, control issues and inadequate social skills. Cognitive and language delays over time are also highly correlated with early traumatic separation. [emphasis added][20]

   [20] Exhibit A10.

10. The psychological report by Mr Jones on 10 December 2016 similarly stated that:

    With regard to the potential impact Mr Oh’s removal from Australia may have upon his children, it is reasonable to indicate the permanent separation of a father from their children does have a detrimental impact upon the development of the child. Some of the effects of father separation include children’s diminished self-concept and compromised physical and emotional security (children consistently report feeling abandoned when their fathers are not involved in their lives, struggling with their emotions and episodic bouts of self-loathing) that can then result in a cacophony of problems during adolescence (including promiscuity, mental health problem, poor academic performance).

    Children who experience inconsistent parent/caregivers or where a parent is removed or separated from them, develop insecure attachments leading to working models of abandonment, self criticism, and excessive dependency (Bowlby, 1982). These negative working models increase a child’s vulnerability to later mental conditions, confusion, internal conflict, anxiety, and depression. Attachment is a specific aspect of the relationship between a child and a parent with its purpose being to make a child feel safe, secure, and protected, and involves two major dimensions: (a) anxiety about abandonment and (b) comfort with closeness. Each child develops into a healthy, functioning adult in the context of a continuous relationship with an emotional attachment to a parent, with a gender identical (male/male; female/female) parent providing specific positive influence.

    It is reasonable to indicate that the sudden and sustained cessation/loss of contact, including face-to-face and residential contact with Mr Oh is [sic] risk his daughters developing a variety of emotional and behavioural dysfunction. [emphasis added][21]

    [21] Exhibit A15, paras 34-36.

11. It is clear from the evidence before the Tribunal that the applicant has a loving, primary role in his daughters’ lives. It is also apparent that the applicant’s wife and daughters are already significantly suffering from his absence in their daily life since he has been held in detention from October 2016. If the applicant is returned to Korea, I understand that he is likely to be detained at the airport and required to complete two years compulsory military service. I would contend, given the extremely detrimental effect of the current separation on the family, that a further prolonged separation between the applicant and his daughters would not be in the best interests of the children.

12. On the basis of the evidence before me, I find that it is in the best interests of the applicants’ children that the decision to refuse to grant his visa is revoked.

    The expectations of the Australian community

13. The Direction at cl 11.3(1) states that the Australian community expects non-citizens to obey the law. It also notes that the nature of the character concerns or offences may be such that the community would expect the person should not be granted a visa.

14. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I note the decision by this Tribunal in Do and Minister for Immigration and Border Protection, which states:

    A decision-maker is, to some extent, required to guess at the community’s expectations… I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done [emphasis added].[22]

    [22] [2016] AATA 390 at [23].

15. I also reflect on a recent Tribunal decision that relevantly articulates the following views about rehabilitation:

    The community also believes in the possibility of rehabilitation and redemption. That much is clear from s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) which sets out the objectives of sentencing in the criminal courts. In doing so, the legislation articulates the approach of the common law that was discussed in cases like Veen v R [1979] HCA 7; (1979) 143 CLR 458 and Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. Those objectives include punishment or retribution, expiation, incapacitation, deterrence, denunciation – and rehabilitation [emphasis added].[23]

    [23] LMYW and Minister for Immigration and Border Protection [2016] AATA 936 at [56].

16. I consider the deliberation of Australian community expectations involves ‘bringing appropriate perspective and proportionality to bear in the assessment of risk’ and that ‘the expectation must be considered contextually, relative to factors arising in relation to other principles’ set out in the Direction.[24]

    [24] Anaki and Minister for Immigration and Border Protection [2016] AATA 693 at [89].

17. The applicant’s offending as a juvenile, his family circumstances prior to his offence and his behaviour over the past 13 years, has been extensively described in my consideration of protection of the Australian community.

18. One of the enduring qualities of the Australian community is its extraordinary diversity – of views, opinions, ethnicity, cultural norms and expectations about behaviour. Traversing this diversity, I seek to consider the sensible ‘middle ground’ of how the Australian community would view the applicant’s circumstances.

19. I am satisfied the Australian community would show some compassion for the applicant’s family circumstances that contributed to his offending as a juvenile. The community would also reflect on the applicant’s capacity to redeem and rehabilitate and have positive regard to his clear criminal record as an adult.

20. The Australian community would have extremely serious concerns about the applicant not disclosing his change of name and prior criminal record to the Australian authorities in 2007 and 2009. However, it may have some understanding that the applicant wished to return to Australia to see his father and cousins and because Australia was the country where he grew up from the age of 12 years old and where he felt ‘at home’.

21. While I accept that military service is compulsory for citizens of the Republic of Korea, some members of the Australian community may also have sympathy for the applicant not yet fulfilling his military service obligations in South Korea.

22. Consistent with Principle 6.3(7) in the Direction, the community would consider the length of time the applicant has been making a positive contribution to Australia, and any consequences on his minor children and immediate family members.

23. Since 2010, the applicant has been continually employed as an optical dispenser and has been a respected and well-regarded member of his local church and community. He married in 2012 and has a loving and caring relationship with his wife and two young daughters. His wife was born in Korea but came to Australia when she was 26 years old and is a permanent resident of Australia. She works part-time as a hairdresser. The applicant’s daughters were born in Australia and are Australian citizens.

24. While the applicant and his wife conceded that they could return to Korea if required, they said that Australia is their home and they want to stay together as a family and raise their daughters here. The applicant would be separated from his wife and children for two years if he returns to Korea and is required to complete his compulsory military service.

25. Based on the evidence before the Tribunal, I am satisfied that the Australian community would expect the applicant to be granted a visa. On balance, I find that this third primary consideration weighs in favour of the applicant.

    Other considerations

26. While the primary considerations carry particular weight, the Direction states at cl 12 that other considerations also must be taken into account where relevant.

27. The only relevant factor for consideration in this matter is the impact on family members. There is no evidence about international non-refoulement obligations, or the impact on victims or on Australian business interests as set out in cl 12(1) of the Direction.

28. Clause 12.2(1) requires that I consider the impact on the applicant’s ‘immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely’.

29. The applicant provided submissions about the impact of his visa refusal on his wife, who is a permanent Australian resident and their two daughters, who are Australian citizens. He noted that his wife and daughters ‘will face extreme hardship financially and emotionally, if [he] were not allowed to live with them’ as he is a ‘responsible husband and father for the children’.[25]

    [25] Exhibit G1 at G21.

30. A psychological assessment report of Ms Kwon by Dr Jung Sook Kim (Psychologist) dated 22 November 2016 stated the following about the impact of the applicant’s absence on his wife and children since he has been detained:

    Ms Kwon has been suffering from Adjustment Disorder with depressed mood and anxiety at severe level. Her husband’s sudden arrest and detention forced them to have a separate life. She is shocked and confused with her current situation. This is responsible for the development of her depression and anxiety.

    …

    The absence of Ms Kwon’s husband threatens the wellbeing of her children. She was unable to fully attend to her children’s need while juggling other responsibilities. She has been unable to take her children out for leisure and recreation. Her elder daughter is 4 years old and is at a crucial stage of social development and autonomy. Her younger daughter is 8 months old and she needs to have positive attachment from her parents. However, Ms Kwon is depressed and anxious and her husband is absent. She is not sensitive enough to fully meet her daughter’s needs. Her daughters are showing distress with her husband’s absence. The prolonged separation from their father is likely to significantly impact their development. This is because young children are unable to comprehend their situation.

    When I consider the severity of her condition, Ms Kwon is unable to take care of her children alone. She is unable to perform responsibilities as a primary breadwinner. She is also unable to perform domestic duties without support.[26]

    [26] Exhibit A13.

31. I also have regard to the psychologists reports and character references set out in my reasons for the primary considerations. These documents reiterate that the applicant is the primary carer, both financially and emotionally, for his wife and daughters; and highlight the detrimental impact on the lives of his wife and daughters since he has been detained.

32. I therefore find that consideration of the impact on the family weighs heavily in favour of the applicant.

    CONCLUSION

33. I have indicated all three primary considerations weigh for revoking the decision to refuse to grant the applicant’s visa. The other relevant consideration is the impact on family members, which also weighs in favour of the applicant.

34. I am therefore satisfied that the considerations overall weigh in favour of granting the applicant’s visa.

    DECISION

35. The decision under review is set aside and in substitution, the Tribunal decides that the discretion under s 501(1) of the Act, to refuse to grant the applicant a Partner (Temporary) (Class UK) visa, should not be exercised.

I certify that the preceding 83 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..........................[sgd]..............................................

Associate

Dated:   23 December 2016

Date of hearing:	19 December 2016
Solicitors for the Applicant:	Mr R Turner, Turner Coulson Immigration Lawyers
Solicitors for the Respondent:	Ms P Richards, Clayton Utz