Oh and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1106
•9 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1106
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1096
GENERAL ADMINISTRATIVE DIVISION ) Re
Se Hoon Oh
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date9 November 2005
PlaceSydney
Decision The decision of the respondent is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex – on-shore visa application – refusal of application for close ties visa on the grounds of the applicant’s substantial criminal record – applicant has substantial criminal record for robbery armed with an offence weapon – examination of the applicant’s criminal record – examination of the applicant’s family and personal circumstances in Australia – necessity to balance the expectations and protection of the Australian community against any hardship to the applicant if he had to return to South Korea – applicant conceded he fails the character test – found that his immigration violations do constitute contempt and disregard for the law – there is a significant risk of recidivism – found that whilst there will be difficulties for the applicant in readapting to life in Korea all his family except his father live there – held that the other considerations do not outweigh the primary considerations – decision of the respondent is affirmed.
Children (Criminal Proceedings) Act 1987 s 33(1B)
Migration Act 1958 ss 499, 501, 501(1), 501(7), 601(6)(a)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Azar and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1061
Re Hong Yeop Yang and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 653
ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
9 November 2005 Professor GD Walker, Deputy President Summary
1. The applicant, See Hoon Oh (also known as Steve Oh), who is aged 19 and a citizen of South Korea, first arrived in Australia on 26 February 1998 on a subclass 976 electronic travel authority. He was granted a visitor (long stay) visa on 26 May 1998. A temporary business (long stay) visa and a protection visa were subsequently refused. On 16 December 2003, Mr Oh was convicted of robbery armed with an offensive weapon and sentenced to 12 months sentence suspended, 12 months supervision (G p31). On 25 June 2004, he applied for a special eligibility (residence) (close ties) visa.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, decided to refuse Mr Oh’s special eligibility visa on the ground that he does not pass the character test because of his substantial criminal record. That is the decision to be reviewed by the tribunal.
Issue
3. The issue for the tribunal in this case is whether Mr Oh is not of good character having regard to his substantial criminal record, having received on 16 December 2003 a 12 months suspended sentence for robbery armed with an offensive weapon, and his past and present general conduct so as to be precluded from the grant of a special eligibility visa. At the hearing Mr Oh conceded that he did not pass the test in s 501(1). The remaining issue, therefore, is whether the tribunal should exercise the discretion under section 501(1) not to refuse Mr Oh’s visa.
Background to the application
4. The applicant, Mr Oh, was born in Dongduchun, South Korea, on 25 December 1985 and is aged 19. He first arrived in Australia on 26 February 1998 on a subclass 976 electronic travel authority granted 24 February 1998 allowing for multiple entries before 23 December 1998. He arrived with his mother, Choon Ja Eun, and father Joon Hwan Oh. On 26 May 1998, he was granted a subclass 686 visitor (long stay) visa valid until 24 February 1999.
5. On 26 October 1998, Mr Joon Oh applied for a subclass 457 temporary business (long stay) visa, listing the applicant as a dependant, which was refused on 25 May 1999. The decision was subsequently affirmed by the Migration Review Tribunal (“MRT”) on 30 May 2001. On 27 February 2003, Mr Joon Oh applied for a protection visa, with the applicant and Ms Eun listed as secondary applicants. The protection visa application was refused on 12 March 2003 and the decision affirmed by the Refugee Review Tribunal (“RRT”) on 14 October 2003. Ministerial intervention was refused. Ms Eun subsequently returned to South Korea, however Mr Joon Oh and the applicant did not leave Australia when required, but remained in Australia as unlawful non-citizens. The whereabouts of Mr Joon Oh are currently unknown to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”).
6. On 21 November 2003, the applicant was arrested by police and found to be an unlawful non-citizen in Australia. He was transferred to the Villawood Immigration Detention Centre, New South Wales, where, on 24 November 2003, he applied for a bridging visa E which was subsequently refused. The decision was affirmed by the Migration Review Tribunal (“MRT”).
7. On 16 December 2003, Mr Oh was convicted of the offence of robbery armed with an offensive weapon and sentenced to a 12 month suspended sentence under Control Order s 33(1B) of the Children (Criminal Proceedings) Act 1987. He was released from custody on the condition that he enter into a good behaviour bond, which he subsequently did on 16 December 2003 (G p20).
8. Mr Oh was subsequently granted bridging visas on 5 February 2004 to cease 5 April 2004, granted 30 March 2004 to cease 24 May 2004, and a further bridging visa granted 24 May 2004 to cease 14 July 2004 (G p53).
9. On 25 June 2004, the applicant lodged an application for a subclass 832 special eligibility (residence) (close ties) visa with the DIMIA office in Canberra. He was subsequently granted a bridging visa on 28 June 2004 to cease 20 August 2004 pending the outcome of his visa application (G p53).
10. On 8 November 2004, the applicant was informed by an officer of DIMIA that it had come to the attention of the department that his visa may be refused under s 501 of the Migration Act 1958 (“the Act”) because he does not pass the character test because of his substantial criminal record and past and present general conduct and invited him to comment (G6). On 19 November 2004, Mr Oh’s then migration agent, Ahm Joo of Jupiters Migration Consulting, made submissions on behalf of the applicant as well as providing copies of character references and a report from the Juvenile Justice Counsellor who assessed Mr Oh suitable for a good behaviour order (G p30). Mr Joo also submitted two statutory declarations from the applicant dated 18 May 2004 and 22 July 2004. In his statutory declaration of 22 July 2004 (G p9), Mr Oh described how he and his family’s life in Australia since their arrival had been very hard because of financial difficulties and that the stress caused his parents to separate and his mother to return to Korea and that he and his father remained in Australia for the sole purpose of him obtaining a good education and a chance to succeed. He said that returning to Korea would cause him hardship, firstly because it would be hard to adapt to the Korean culture and way of living and secondly, he would have to undertake two years compulsory conscription, by which time he would be 22 and, without having completed his education, would find it very hard at that age to find employment.
11. On 30 December 2004, a delegate of the Minister decided to refuse Mr Oh’s special eligibility visa on the ground that he did not pass the character test because of his substantial criminal record and past and present general conduct and having decided to exercise his discretion under s 501(1) to refuse the grant of a visa. On 6 January 2005, this decision was notified to the applicant by letter addressed to Mr Amh Joo, Jupiters Migration Consulting, Strathfield. This letter incorrectly stated that the applicant had 28 days to lodge an appeal with the Administrative Appeals Tribunal, whereas pursuant to s 500(6B) of the Act, the applicant should have been notified that, as his visa application was made within Australia, an application for a review with the Administrative Appeals Tribunal must be lodged within nine days of notification of the decision. On 19 January 2005, Mr Oh lodged an application for a review of the decision by this tribunal. At a directions hearing held on 2 February 2005, the representative for the respondent conceded that the decision had been invalidly served on Mr Oh and that the department was arranging to re-serve the refusal notification. On 8 June 2005, a delegate of the minister informed Mr Oh, care of his migration agent, that his application for a special eligibility visa had been refused. This notification was received by Mr Joo on 10 June 2005, however the applicant did not personally receive the notification until 27 June 2005. On 8 July 2005, Mr Oh lodged an application for a review of that decision by the tribunal. On 18 August 2005, the application was dismissed by the tribunal on the ground that the notification was invalid because the applicant was not served with two copies of the documents pursuant to s 501(6B) of the Act. On 23 August 2005, the decision was again made to refuse Mr Oh’s visa application and this was correctly notified to him on 24 August 2005 and on 26 August 2005, he applied for a review of that decision by the tribunal.
12. Mr Oh is currently in immigration detention at the Villawood Immigration Detention Centre, New South Wales.
13. At the hearing, the applicant was represented by Christopher Levingston, solicitor, Christopher Levingston and Associates, and the respondent was represented by Avinesh Chand, solicitor, Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Migration Act 1958 (“the G Documents”), taken into evidence as Exhibit A1, together with evidence tendered by the parties at the hearing. Oral evidence in person was given by Steve Oh, Rebecca Jung, Daniel Kim, Han Jin Jung, Jung-Eim Kim, Daniel Seo and Duk Jun Lee. Dominic van Gestel gave oral evidence by telephone on behalf of the applicant.
Relevant Law and Policy
14. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(ii). Section 501(6)(a) provides:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
15. Section 501(6)(c)(ii) states:
(c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct
…
the person is not of good character; …
16. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
17. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The applicant’s background
18. At the hearing the applicant conceded that he failed the character test. The evidence he adduced related to the exercise of the discretion in s 501. Before the hearing, the applicant filed a statement (Exhibit A2) in which he accepted that he had a conviction for robbery, the commission of which offence came about through his association with his co-offender:
Prior to my involvement in this criminal activity I had not committed any criminal offences. I realise that my behaviour was incredibly stupid and that I could easily have created a huge problem that I could not solve. At the time of the commission of this offence I was very much under the influence of my friend Joo Hoon Lee. However, I accept responsibility for what I did. When the matter came to Court I pleaded guilty … and I was put on a bond. Since I was placed on a bond I have not engaged in any other criminal activity. I will not commit any further offences and I beg to be allowed to stay in Australia.
19. At the hearing the applicant said that he first came to Australia with his parents at the age of 12 on 26 February 1998. Thereafter his father Joon Hwan Oh made a series of applications to extend his short stay visas. His parents had owned some businesses and other properties in Korea but had sold them all when they first came to Australia following representations made to them by a person the applicant described as a relative, or alternatively as his father’s best friend, that he would help them to obtain permanent residence. That person then absconded with the funds in 1999. A substantial amount of money appears to have been involved, but the applicant was evasive about its size and would not give even an approximate figure. This evidence was hard to reconcile with an earlier assertion of the applicant’s that the family had sold most of its assets, including the family house, in order to support itself (G p25).
20. He enrolled at Strathfield Senior Adventist College, where he remained for two and a half months, but transferred to Concord High School because his family could not afford to pay the fees. He remained at Concord from Years 8 to 11, and earned his School Certificate before transferring to Belmore Boys’ High School.
21. The applicant said he knew nothing about visas or migration law until he was detained at Villawood for the first time at the age of 16 in February 2003. After an initial visa refusal, he eventually obtained a bridging visa and was released from Villawood, moving in with his father at Strathfield, his mother having departed in 2002. He returned to Concord High School, and then moved to Belmore Boys’ High School where he remained for a few months, leaving in the middle of Year 11 because he was not enrolled with the Board of Studies.
22. At Belmore High he did not cause any major problems in the school but his attendance was quite irregular (G p24). He said at the hearing that he would like to finish Years 11 and 12 at Meadowbank TAFE and either train to be a chef or study business. He had worked at Strathfield Music Studios, a karaoke club, in customer service for nearly a year until the beginning of 2005. He resigned from that position because he did not like working a shift that ended late, often at about 1:00 am. He has not searched for work systematically since then but has performed casual work about one day per week. For the rest, he is supported by his girlfriend and by his “guardian”, a woman friend of his mother’s. He says he is not involved with drugs, and does not smoke. He consumes alcoholic beverages but apparently not to excess.
The armed robbery
23. Turning to the offence of robbery while armed with an offensive weapon for which he was convicted at Bidura Children’s Court on 16 December 2003, receiving a 12 month suspended sentence, he said in his sworn statement (Exhibit A2) and in his oral evidence that on the day before the offence, he had been complaining to his friend Joo Hoon Lee about his family’s financial circumstances. Joo Hoon Lee, an overseas student aged 18 at the time, was also short of funds and at about 8:00 pm they agreed to perform some robberies and share the proceeds equally.
24. The following day, between 8:00 and 9:00 pm, they went to Ashfield City Rail Station where they located a prospective victim, a Chinese man aged about 18. Joo Hoon Lee thought he was a promising target because “all Chinese have heaps of money”, a theory which, in the event, proved to lack predictive power. They followed the victim from the station and after a while seized him, and the applicant pointed a grey plastic imitation gun at him. The victim seemed frightened and said, “Don’t hit me, don’t hit me”. Joo Hoon Lee searched the man’s bag, taking his money, about $50, and also his watch. The applicant took his student identification card so that they would know who he was and where he lived and would be able to threaten him if he made any move to inform the police.
25. After the crime they returned to Ashfield Station with a view to repeating the process but were arrested. The applicant admitted that if he had not been arrested he would have continued committing similar offences. Joo Hoon Lee has since been convicted and removed from the country.
26. The applicant said that throughout the robbery, he knew that what he was doing was wrong, but expressed regret for his misconduct. He said he had been young and not thinking, and that everyone can make a mistake. His friends had been really shocked by his behaviour and he had learned his lesson. When it was put to him that he was only sorry about the offence because he had been caught, he thought for a moment and said it was hard to answer that but he would say it was not true.
Migration violations
27. Before being detained at Villawood for the first time in February 2003, the applicant had on four occasions been unlawful in Australia for lack of a valid visa. He said that until his first detention, he knew nothing about visas and had left such matters to his father. His first attempt to obtain a bridging visa after that was unsuccessful, but in March 2003 a bridging visa E was issued on lodgement of $10,000 by way of security (Exhibit R1 p123). The bridging visa had conditions 8505 (must reside at specified address) and 8506 (must notify change of address) attached. The specified address he gave at the time was in fact wrong, and he admitted that he had twice moved without informing the Department.
28. On 18 May 2004, he signed an application for a sub-class 832 visa. The application appears to have been lodged with the Department on 7 June 2005 (G p48). In two respects, the applicant failed to make full disclosure. In answer to question 6, “Have you or any other person included in this application ever been refused an entry permit or visa in Australia?”, he placed a small tick in the “Yes” box, but failed to complete the accompanying section that requires details from applicants giving an affirmative answer to that question (G p48). In answer to question 59, he falsely answered “No” to a question asking if he had any outstanding debts to the Commonwealth (G p41), as he would have acquired a debt for his detention in Villawood.
29. In his sworn statement he said that the application had been prepared by a migration agent, Mr Ahm Joo at Jupiters Migration Consulting: “An application was prepared for me by Mr Joo and I signed that application for a visa on 18 May 2004. … I am now aware that a number of questions on that application were answered incorrectly” (Exhibit A2). He did not say when he became so aware, and his statement does not explicitly assert that he was unaware of the falsity of those answers at the time. It is usual for applicants to blame their migration agents or lawyers for all false or misleading answers and in the absence of further evidence such assertions must be treated with some caution.
30. As was noted above, the applicant did not comply with the conditions of his bridging visa. Even if one accepts that he knew nothing about visas before his first detention at Villawood, he must certainly have been aware that his fifth period of unlawful presence, which occurred after his release from Villawood, was a breach of migration law.
31. On 19 December 2003, the Migration Review Tribunal, when affirming a decision refusing the applicant a bridging visa E (Class WE) 050 Visa, made the following comments:
64. The Tribunal put it to him that the terms of his prior bridging visa would have been fully explained to him before he was released and that he would have known of the conditions. The visa applicant was extremely evasive as to his living arrangements. Finally he conceded again that he did not tell the department that he had moved twice and did not inform the Department.
65. … [T]he visa applicant then conceded that he was aware of the conditions on his prior bridging visa.
…
70. The prior immigration history of the visa applicant and his total disregard for abiding by previous conditions, which he ultimately conceded that he was aware of, and the fact that the imposition of a security of $10,000 previously did not induce the visa applicant to abide by conditions leads the Tribunal to find that no amount of security would induce the visa applicant to abide by any conditions the Tribunal sought to impose. (Exhibit R1).
32. The applicant’s father made an application for a protection visa, which included the applicant as a dependant, on 27 February 2003. That application was refused on 12 March 2003 while the applicant was still in immigration detention. The RRT affirmed the Department’s decision on 14 October 2003 and the associated bridging visa E ceased on 20 November 2003. It was after that expiry that the visa applicant again became an unlawful non-citizen for the fifth time.
33. In an earlier statutory declaration (G p6), the applicant deposed that “On 21 November 2003 I came to the attention of the NSW police and I was detained. I was found to be an unlawful non-citizen and I was transferred to Villawood Immigration Detention Centre again”. The applicant did not explain what he had been doing that had attracted police attention and that resulted in his arrest.
34. Following the rejection by the Department and the RRT of his protection visa application, the applicant’s father is now an unlawful non-citizen and is a fugitive from the Department. He is in regular contact with the applicant by telephone, but the applicant claims not to know his whereabouts. One would not expect a man to report his own father to the authorities, but at the same time it is probable that the applicant is, to some degree, complicit in his father’s unlawful stay. The applicant said at the hearing that his father is staying in Australia illegally because he does not want to leave the applicant here by himself.
Family and friends
35. Apart from his father, all of the applicant’s family is in Korea. His mother is working in the cosmetics and skin care field in Chongju and telephones him regularly. His other family in Korea include his grandmother, aunts and cousins on his mother’s side, and uncles and cousins on his father’s side. He completed Year 6 in Korea and commonly speaks Korean with his friends. He believes, though, that he could not cope with readapting to the Korean lifestyle. “If I return to South Korea firstly, it would be hard to socialise and form friendship’s as I have to re-adapt to the Korean culture and way of living. Secondly, there is a 2 year conscription session for Korean male citizens at my age. … Having not been able to complete my education in Australia due to my visa problems and conditions, I will not be able to find my self a position of employment let alone continue my Higher School Education in Korea” (G p 8).
36. Also filed with the tribunal prior to the hearing were character references from Hyean-Jung Min, Ae Jin Lee, Daniel Kim (Exhibit A4), Rebecca Jung (Exhibit A3), Hoon Park, Han Jin Jung (Exhibit A5), Sun Min Kim, Jung-Eim Kim (Exhibit A6), Keith Kwon, Peter Ahm Joo, Andrew Nam, Dr Ilyong Son, Hyun Joo Kim, Hyeong Jo (Daniel) Baek, Daniel Seo (Exhibit A7), Sae Yi Oh, Duk Jun Lee (Exhibit A8), Jin-Ho Ahn, Sung Lae Hong, George Gianniotis, Dennis Kim, Hyeon-Jae Kim, and Myung Soo Kim. These all attested to him being a compassionate, respectful person whose criminal act was completely out of character and that he was very remorseful for the incident.
37. A number of the above also gave oral evidence in his support at the hearing. Rebecca Jung said she was a previous girlfriend of his but they had remained close friends. She had visited him regularly when he was in Villawood. He was not a bad person and was not addicted to crime, and had been troubled and sorry since the robbery incident. Daniel Kim said that the applicant “was out of control” at the time of the crime and was unable to explain why he had doe it. He had since changed and become more mature. He was sorry for what he had done but, Mr Kim said, there would be some risk of re-offending. Han Jin Jung described the applicant as gentle, considerate and a hard worker. He regretted his past actions and had learned his lesson. Mrs Jung-Eim Kim is the mother of an only son who has been through situations similar to those of the applicant. She regards the applicant as polite and helpful and says that he has learned from his mistakes. She is confident that his mistakes would not be repeated. Daniel Seo has known the applicant for seven years. He considers him to be “an intelligent fellow” who made a “complete utter mistake”. At the time of the offence, “he was a child, he was 17, and didn’t know about anything”. He would have problems in readapting to Korean culture. Duk Jun Lee expressed the view that the robbery occurred “due to his very weak mental status, because to my understandings he had serious family issues at home in the time of the incident”. His friends here want him to stay in Australia and he will not re-offend in the future, Mr Lee said.
Supervision report
38. A juvenile justice report dated 16 November 2004, by Dominic van Gestel, manager of the Stanmore Intensive Program Unit was also filed (Exhibit A9), indicating that the applicant had come under the supervision of the unit as a result of being given a suspended sentence order. Under the program, he had undertaken counselling to address his past offending behaviour and to address the risk factors that contributed to his behaviour. In Mr van Gestel’s opinion, the applicant “is at low risk of becoming involved in further offending” and that with the assistance of the service, he will continue to focus on his
a) Ongoing engagement in counselling and group programs to assist address his past offending behaviour and current issues within his life
b) Continued attempts to access and engage in education in obtaining his Higher School Certificate
c) Obtain employment to support his continuing efforts to stabilise within the community.
39. Mr van Gestel said that since the family’s arrival in Australia, they had been confronted with ongoing obstacles.
Both Steve and Mr Oh [Senior] have previously reported that due to the constraints of their current visa they are currently prohibited from obtaining employment, while unable to receive any financial assistance from the Government. Steve reports that this has caused ongoing stress on all family members and they have been forced to sell the majority of their assets, including the family home, in order to financially support the family. ….
Although committed to avoid engaging in further offending behaviour in the future Steve continues to identify his current visa status, and lack of employment or access to financial benefits as a significant risk factor, continuing to engage in open discussion with this service as to his efforts to overcome his current situation and expressing ongoing commitment to engage in further education and employment pending the outcome of his visa review.
40. That report was prepared on 16 December 2003, and the comments about the applicant’s being prohibited from undertaking employment have not applied for some time. It should also be pointed out, given the picture of his family’s situation that the applicant has drawn, that the visa constraints, welfare ineligibility and consequent financial straits that the applicant and his father have experienced do not result from some unforeseeable misfortune that has befallen them and that was beyond their control. They are, rather, the inescapable consequences of attempting to migrate to a foreign country without first obtaining the appropriate visa and, once landed, of attempting to obtain visas to which they were not entitled.
41. In his telephone evidence at the hearing, Mr van Gestel said that the applicant had shown remorse and had made it clear that he would not have committed the crime if he had known it would end up in the way it has. If he could be in a stable environment and undertake work or other pro-social activities that would reduce the possibility of boredom, that would assist him to avoid further offending. He agreed that the lack of full-time work and “access to financial benefits” would heighten the risk somewhat, but that was only one factor. Although he could not rule out the possibility of re-offending, he considered the applicant to be at low risk of recidivism.
Application of the Law and Findings of Fact
42. As was stated above, the first issue for me to decide is whether Mr Oh fails the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more and/or because of his past and present general conduct. The applicant was convicted on 16 December 2003 of robbery armed with an offensive weapon and sentenced to 12 months imprisonment, sentence suspended to 12 months supervision.
43. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
44. In this case the applicant’s suspended sentence of 12 months imprisonment for armed robbery causes him, as he conceded, to fail the character test.
45. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Mr Oh does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
46. In relation to whether the applicant has a “substantial” criminal record paragraph 2.4 of Direction No 21 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
47. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (e) armed robbery (including robbery involving the use of imitation weapons), (f) assault or any other form of violence against persons, and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.
48. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
49. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
50. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Protection of the Australian Community
51. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, the applicant was convicted on 16 December 2003, of robbery armed with an offensive weapon and given a 12 months suspended sentence. This was the applicant’s first criminal offence. The applicant describes the offence as “opportunistic” (G p23), but it was actually premeditated over a 24-hour period. It was intended to be the first of a series of similar robberies, and would have been, but for his timely arrest. The offence was aggravated by being committed in company and also had a vicious sting in the tail: the applicant personally stole the victim’s identification card so that the two malefactors would be able to threaten to harm him if he reported the matter to the police.
52. He has also breached Australia’s migration laws by remaining in the country as an unlawful non-citizen, breaching the conditions of his bridging visa, making false or misleading statements to the department in connection with his visa applications including failing to declare that he had previously been refused a visa or that he had an outstanding debt to the government. Direction No 21, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious.
53. In his statement of facts and contentions (Exhibit A10), the applicant’s solicitor submitted that the applicant’s failure to disclose his debt to the Commonwealth was an error and was not done with the intention to mislead, and that the applicant’s criminal conduct is confined to one single incident, albeit “very serious”. That was not the applicant’s only breach of migration law, however. Even apart from the failure fully to disclose his prior visa refusal, which he blames on his migration agent, there is also his fifth period of unlawful stay, which was scienter even if the four earlier periods were not. There is the breach of visa conditions of which he initially attempted to deny all knowledge but later admitted. The Migration Review Tribunal made special reference to “his total disregard for abiding by previous conditions, which he ultimately conceded that he was aware of, and the fact that the imposition of a security of $10,000 previously did not induce the visa applicant to abide by conditions”. His immigration history led the tribunal to find that “no amount of security would induce the visa applicant to abide by any conditions the Tribunal sought to impose”. His migration law violations in themselves constitute a picture of contempt and disregard for the law.
54. Next, the tribunal is to consider the risk of recidivism. Paragraph 2.10 of the direction states that a non-citizen with previous convictions in Australia should be considered as having an increased risk of recidivism (2.10(b)). The decision-maker must also consider the extent of rehabilitation already achieved and the positive contribution to the community the person may reasonably be expected to make (2.10(c)). In this case, the applicant has committed no further general law offences since entering into his good behaviour bond in December 2003. In his statement of facts and contentions (Exhibit A10), the applicant’s solicitor states:
The applicant complied with the conditions of his bond and has been rehabilitated. He has not re-offended and is entitled to the benefit of his prior and subsequent good behaviour.
55. Nevertheless, both Mr van Gestel and one of the applicant’s character witnesses said that the risk of re-offending could not be entirely ruled out. Mr van Gestel thought that full-time employment and a stable situation would help to reduce the risk of repeat offending. The applicant, however, gave no convincing explanation for his failure to find full time employment, even though he said at the hearing that he “could get work easily”. He is apparently content to work one day a week and accept the assistance of his girlfriend and an older woman who is a friend of his mother’s. His father is effectively on the run from the Department and the applicant must, to some extent, be collaborating in concealing his whereabouts. That hardly suggests that he is in the kind of stable situation that Mr van Gestel contemplates.
56. In cases such as these, the tribunal looks for among other things solid evidence of practical steps actually taken towards rehabilitation. In the short time frame that usually applies in these cases, an applicant cannot be expected to perform miracles, but can at least make the most of the opportunities available to him or her (see eg Re Azar and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1061). In this case I am not satisfied that the applicant has done so. His expressions of remorse about the armed robbery and of positive intentions for the future are a start, but they are not sufficient.
57. Besides the armed robbery, the applicant has a record of migration contraventions which he continues to rationalise and obviously does not take very seriously. While Mr Levingston is right to say that the applicant is not “addicted to crime”, there is in my view a risk of recidivism here which, though not high, is nevertheless significant.
58. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in this case would send an entirely undesirable message to non-citizens contemplating, or currently engaged in, criminal activity.
59. For the above reasons I find that the community protection favours visa refusal in this case.
Expectations of the Australian Community
60. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”. The fact that the applicant has been on a series of short-term visas might well strengthen that expectation.
61. In this case, the applicant has been convicted of a serious offence including violence and the threat of violence. He has also committed multiple breaches of the migration laws including making false statements in his visa applications, breach of visa conditions and remaining as an unlawful non-citizen in Australia. Paragraph 2.12 of Direction No 21 states in part that:
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
62. In my view, the community would take a particularly serious view of an offender who commits an armed robbery in company with another in a public place. The offenders followed their victim from a railway station and, after robbing him, returned to the station with a view to repeating the process. It is common knowledge that the depredations of groups of two or more youths (often, but not always, non-citizens) in public places have become a major concern in many cities of the world. I think a large proportion of the community, whether aware or unaware of conditions overseas, would expect the Commonwealth and the States to take all reasonable and proper steps to curtail any further growth of that phenomenon and, if possible, to put it into reverse. In that context I think the community would expect visa refusal in this case.
The Best Interests of the Child
63. There is no evidence that the applicant has any children who would be affected by a decision under s 501(1) of the Act.
Other Considerations
64. Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.
65. The applicant’s mother resides in Korea. His father is currently in Australia as an unlawful non-citizen whose whereabouts are currently unknown to DIMIA. There is no evidence that the applicant has any other relatives in Australia who would be adversely affected by a decision to refuse his visa application. In a statutory declaration made on 20 October 2004, he stated that he had a girlfriend, Rebecca Jung, but in his statement filed with the tribunal prior to the hearing (Exhibit A2), no mention is made of her. At the hearing she described herself as his former girlfriend. In her letter to the tribunal (Exhibit A3), she described the applicant as “a friend of so much importance to me”, but made no comment as to any adverse effect on her should the applicant be returned to Korea.
66. As Mr Levingston pointed out, his friends who gave evidence at the hearing want him to remain in Australia. But there is no reason to believe they will suffer any harm if he is removed. They have expressed general concerns for him if he is to return to Korea, mainly in relation to readapting to the culture. The applicant himself has expressed misgivings about possible difficulties in making friends, and in completing his education, besides the prospect of two years of military service.
67. On the other hand, he speaks and writes Korean and the fluency he has gained in English during his seven years in Australia should help him in finding employment and in further education. There are also numerous secondary education institutions (and two universities) in Korea that use English as the language of instruction (see Re Hong Yeop Yang and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 653 at paragraph 31). Although he has no friends in Korea, all his family except his father are there. Further, whatever one might think about conscription, one of its better features is that it fosters companionship, and indeed some young men make lifelong friends and contacts in the army. The applicant would undoubtedly encounter difficulties in readapting to life in Korea, but he is quite intelligent and, with the help of his family network, he should be able to overcome them.
68. In my view, the other considerations do not outweigh the primary considerations of community protection and expectations in this case. The decision under review should be affirmed.
I certify that the preceding 68 paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 31 October 2005
Date of Decision 9 November 2005Solicitor for the Applicant Mr C Levingston, Christopher Levingston & Associates
Solicitor for the Respondent Mr A Chand, Clayton Utz
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