Oh and Minister for Immigration and Border Protection (Migration)

Case [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…

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AGLC
Oh and Minister for Immigration and Border Protection (Migration) [2016] AATA 1079
Case
[2016] AATA 1079
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a partner visa by Mr. Joonmo Oh (the applicant) who failed to pass the character test under section 501 of the Migration Act 1958 (Cth). The Minister for Immigration and Border Protection had refused to grant the visa on character grounds due to the applicant's substantial criminal record. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant passed the character test and, if not, whether the decision to refuse the visa was the preferable one.

The Tribunal was required to determine two key issues: first, whether the applicant possessed a "substantial criminal record" as defined by section 501(7) of the Act, thereby failing the character test under section 501(6); and second, if the applicant did not pass the character test, whether refusing the visa under section 501(1) was the preferable decision. The applicant had a prior conviction for robbery in 2003, for which he received a 12-month suspended control order, which the Tribunal considered to constitute a substantial criminal record.

In its reasoning, the Tribunal applied the principles outlined in Direction No. 65, which guides decisions regarding visa refusal and cancellation under section 501. The Tribunal acknowledged Australia's sovereign right to determine who enters or remains in the country and the community's expectation that non-citizens will obey Australian laws. However, it also considered factors such as the applicant's long residence in Australia since childhood, his emotional unsettledness following parental separation, evidence of rehabilitation, a low risk of reoffending, and the significant negative impact of family separation on his minor children. Weighing these countervailing considerations against the seriousness of the past offending, the Tribunal found that refusing the visa was not the preferable decision.

Consequently, the Tribunal set aside the decision to refuse the visa and substituted a decision to grant the partner visa.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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? 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). 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. 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.

Ratio Decidendi

Legal Principle Established

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