Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1246
•16 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1246
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2004/1454
GENERAL ADMINISTRATIVE DIVISION ) Re JIN HO CHOI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms G Ettinger – Senior Member Date16 December 2005
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Ms G Ettinger
Senior Member
CATCHWORDS
IMMIGRATION - application for Contributory Parent (Temporary) (Subclass 173) visa – visa refused on the basis that visa applicant is not of good character – visa applicant arrived in Australia with her young son in 1988 on a visitor’s visa two years after arrival of her husband –visa applicant not a genuine visitor but intended to remain permanently in Australia – visa applicant left Australia in 1993, and returned three months later with her son, having again entered on a visitor’s visa, but under a false name and passport – she again worked illegally and had to leave in 2004 – visa applicant worked illegally in Australia for entire duration of stay – visa applicant’s son, now 23, has attained Australian citizenship - decision affirmed
Migration Act 1958 s 501
Ministerial Direction 21
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
REASONS FOR DECISION
16 December 2005 Ms G Ettinger – Senior Member BACKGROUND
1. The Applicant, Mr Jin Ho Choi, is a 23 year old Australian citizen who was born in Korea, and came to Australia from there with his mother, Young Hee Choi, on a Visitor Visa in 1988. His father had arrived here in 1986. The parents were found to have overstayed their visas, and to have worked illegally in Australia. They had to return to Korea in June 1993. Three months after their return to Korea, Mrs Choi obtained a passport in a false name, Young Hi Choe, and on 14 September 1993, re-entered Australia with her son, again on a Visitor Visa, now designated a Tourist (Short Stay) (Subclass 670) Visa.
2. Mrs Choe, as she was then known, again overstayed her visa which expired on 14 December 1993. Mrs Choe was issued with a Bridging Visa E on 12 February 2004 which required her to leave Australia on 14 February 2004. That is when she left Australia.
3. Mrs Choe’s application for a Contributory Parent (Temporary) (Subclass173) Visa was received by the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) on 4 August 2004. The application was refused on 19 October 2004 pursuant to section 501 of the Migration Act 1958 on the basis that Mrs Choe did not pass the character test. Further, the Department refused to exercise its discretion to permit her the visa as applied for. That is the decision which her son Mr Jin Ho Choi has appealed to this Tribunal.
4. I turned then to the issues which I have to decide in this case.
ISSUES BEFORE THE TRIBUNAL
5. The issues I have to decide are:
· In regard to the Contributory Parent (Temporary) (Subclass 173) Visa, whether Mrs Choi passes the character test because she is a person of good character, having regard to her past and present general conduct (section 501(6)(c)(ii) of the Act; if not
· Whether I should exercise the discretion in section 501 of the Act in her favour.
RELEVANT LEGISLATION
6. Section 501 of the Migration Act 1958 (“the Act”), provides as follows:
"501(1)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.
(2)The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
….
501 (6)For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
…
Otherwise the person passes the character test.”
7. If the person fails the character test pursuant to section 501(2) of the Act, then by virtue of section 499(2A), in considering this issue, I must take into account, as a guide to making the decision, Ministerial Direction No. 21 (the “Direction”), being a Direction made by the Minister for Immigration and Multicultural and Indigenous Affairs pursuant to section 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under section 501.
WHETHER MRS CHOI PASSES THE CHARACTER TEST BECAUSE SHE IS A PERSON OF GOOD CHARACTER, HAVING REGARD TO HER PAST AND PRESENT GENERAL CONDUCT PURSUANT TO SECTION 501(6)(C)(II) OF THE ACT
8. The facts of Mrs Choi’s entry and exits into Australia are not in dispute. I was satisfied that she first entered Australia on a V12 Visitor Visa from Korea, the country of her birth in the name of Young Hee Choi on 3 July 1988. She overstayed the visa which was for three months, and before the end of 1988, had become an unlawful non-citizen. Mrs Choi and her son, Mr Jin Ho Choi, who was born in Korea on 8 December 1981, left Australia on 27 June 1993. She re-entered on a Tourist (Short Stay)(Subclass 670) Visa a few months later on 14 September 1993, accompanied by her son for the stated purpose of visiting Australia. She did so in the false name of Young Hi Choe.
9. Mrs Choi gave evidence by telephone link from Seoul, acknowledging that she had planned from the time of her first entry to Australia in 1988 to spend long term in Australia in order to educate her son. As to the second entry in September 1993, which was only months after her return to Korea with her son in June 1993; she stated that he did not settle back well after the long time he had spent in Australia, and that she felt she had to bring him back for his schooling. Mrs Choi told me that on both occasions she had worked unofficially in Australia as a machinist.
10. I was able to conclude from her evidence, which was given by telephone from Seoul with the assistance of a very competent interpreter in the hearing room in Sydney, that when Mrs Choi re-entered Australia under a false name in 1993, she was still intent on remaining in Australia with her son in order to enable his education.
11. At the hearing before me, Mr Jin Ho Choi gave evidence to the effect that he is an only child, he misses his mother and feels that he cannot function without her, and that he is worried because she is living under sub-optimal conditions in Seoul, and working in a household where she is not treated well. He agreed however when asked, that he could visit her freely provided he had the money.
12. I was satisfied that Mrs Choi:
· breached her Visitor Visa conditions by overstaying and by working after she entered Australia in 1988 and stayed until 1993, and that she did so again after her re-entry under a false name in 1993.
· that she accepted she had knowingly worked in breach of her visa conditions during both of her visits in which she had, after three months on each occasion, become a unlawful non-citizen; and
· that she had used a false name to obtain a visa to re-enter Australia in 1993 in order to avoid detection by the Australian authorities.
13. Paragraph 1.9 of the Direction states:
"In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
...
(b)whether the non-citizen has, in connection with any application for the grant of any kind of Government benefit, provided a bogus document or made a false or misleading statement
…”
14. I am mindful that there are many decided cases in which good character has been considered. I have taken into account the following in particular, noting that in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon stated that:
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
….
Good character cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning. The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation."
15. In Irvingv Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, Lee J stated:
"Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion ...
...
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry."
16. In Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, the Full Court said in reference to section 501 of the Act :
"The concept of good character is section 501 is not concerned with whether an applicant meets the highest standards of integrity but with a less exacting standard than that. It is concerned with whether the applicant's character in the sense of [his] enduring moral qualities is so deficient as to show it is for the public good to [cancel [his] visa]."
17. There must be an honesty and integrity amongst visa applicants on which the authorities can rely so that they are treated fairly and that their claims are assessed by the same standards. Unfortunately Mrs Choi has, as detailed above, knowingly breached the standards, and the requirements of the legislation.
18. I am therefore satisfied from the evidence and the case law, to conclude that Mrs Choi does not pass the character test because she is not a person of good character, having regard to her past and present general conduct pursuant to section 501(6)(c)(ii) of the Act. My next task is then to consider the discretion to set aside the decision of the Respondent.
WHETHER I SHOULD EXERCISE THE DISCRETION IN SECTION 501 OF THE ACT IN REGARD TO MR JIN HO CHOI’S APPEAL IN REGARD TO A CONTRIBUTORY PARENT (TEMPORARY) (SUBCLASS 173) VISA FOR MRS CHOI
19. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction).
20. The three primary considerations in Direction No. 21 follow:
Clause 2.3 provides as follows:-
“2.3In 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.”
21. Clause 2.3 should be considered in relation to clause 2.5 which reads as follows:
“2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
protection of the australian community
seriousness and nature of the conduct
22. In considering of the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction), paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. It is true that I have no record of any convictions Mrs Choi has had in either Korea or Australia. However as Deputy President McMahon pointed out in Lachmaiya (supra):
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”
23. Paragraph 2.6(c) of the Direction states that it is the Government's view that, "presenting false or forged documents or making a false or misleading statement in connection with entry and stay in Australia" is very serious. Given her concession and the evidence before the Tribunal, I can be satisfied that Mrs Choi presented false documents to facilitate her re-entry into Australia in 1993.
likelihood of repetition of the conduct and risk of recidivism
24. The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
25. In considering the risk of Mrs Choi re-offending if she is granted entry to Australia, I have noted what the Tribunal in Beale (supra) stated:
"In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person's past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community."
26. Mrs Choi’s conduct demonstrates a consistent and sustained evasion or breach of her obligations over a substantial period of time, which was accompanied by the giving of false or misleading information. She has already demonstrated in overstaying her visa twice, misleading the authorities by re-entering Australia under a false name, and working illegally, that she is capable of re-offending.
general deterrence
27. The third of the three factors relevant to an assessment of the level of risk of the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). In the present matter, the affirmation of the decision not to grant the visa to Mrs Choi presumably would become known to friends and acquaintances and that may provide some deterrence to other persons.
28. In coming to a decision, I have taken into account Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935 where, at paragraph 47, Deputy President Purvis stated that:
“These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application that might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. He person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.”
29. To grant the visa to Mrs Choi would be tantamount to rewarding her for her unlawful conduct, and would, in addition, confirm to others contemplating engaging in similar conduct, that such conduct is advantageous and will ultimately lead to the grant of a visa. Although in this matter the general deterrent effect is not significant, and there is no suggestion that the applicant was involved in a criminal scheme, I consider that on balance this consideration points in favour of affirming the Respondent’s decision.
expectations of the australian community
30. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. Deputy President McMahon said in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 there would also be a general expectation in the community that the Act would be administered fairly and humanely. This second primary consideration also appears from its terms to require the decision-maker to formulate the expectations of the Australian community not only objectively, but also with reference to the particular person involved in the relevant determination.
31. I have taken into account Mrs Choi’s wishes to improve the education she sought for her only son. She achieved that. He is now 23 years old, has completed his schooling in Australia, is an Australian citizen with all the benefits that brings, and is studying at University.
32. Persons who are permitted to remain in Australia are expected to be law abiding citizens. I do not consider that the Australian community would be sympathetic to Mrs Choi.
best interests of a child or children
33. As it does not appear that Mrs Choi has any children under the age of 18 years, this is not a relevant consideration.
other considerations
34. Other considerations included in paragraph 2.17 of Direction No. 21 as are relevant to the present matter. Paragraph 2.17 reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations …” (emphasis added)
35. This preface is then followed by a list of some 11 examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters. I have therefore taken into account the situation in which Mrs Choi and her son find themselves. She is now separated from her husband, and she and her only son miss each other and want to spend time together. I was satisfied about that when I heard their evidence. However Mrs Choi has all the rest of her family in Korea, and if she chooses not to see many of them, as indicated in her evidence, then Australia cannot be held responsible. The weight of family connections remains in Korea.
36. Mr Jin Ho Choi is now 23 years old, has been an Australian citizen since 28 July 2004 with all the benefits that confers, and is a University student. He can travel to Korea to visit his mother for as long as he wishes, and return to Australia at any time.
37. Accordingly, I was satisfied that there are no other relevant considerations which arise out of paragraph 2.17(a), because Mrs Choi and her son have no particular business or other ties to the Australian community.
character evidence
38. Mr Jin Ho Choi tendered four character witness statements and I have considered these.
39. Exhibit A1 is a photocopy of a statement of Father Duggan, dated 7 November 2005, in which he states that Young Hi Choe attended his church, Korean Martyrs Catholic Church for some years before returning to Korea in 2004. He did not indicate that he knew anything about Mrs Choi’s immigration status and stated that during the time she attended his church she was well regarded as a person of good character.
40. Exhibit A2 was a letter of Sam Jung Woo, President of The Lions Club of Sydney West Inc, on the Club’s letter head, dated 8 November 2005, stating that he had known Mrs Choi since she first arrived in Australia. Mr Woo stated that he had employed Mrs Choi to sew clothes for him. He may have known of the reasons for her departure from Australia because he wrote: “… I strongly believe that Young Hi Choe will not disappoint the Australian Laws and the community ever again.”
41. Exhibit A3 was a statement of Kay Chun dated 7 November 2005, giving no address, but giving a mobile number on which she could be contacted, and stating that she had known Young Hi for seven years. Ms Chun praised Mrs Choi as a mother, citizen, and worker. She stated that: “And if she made any mistakes in terms of immigration law during her stay in Australia it was very inevitable act of any mother for a son …”
42. Exhibit A4 was a letter of Soon Kawata dated 5 November 2005 without any form of address or telephone number, referring to a 12 year friendship, Mrs Choi’s singing and her devotion to her son.
43. As I said in the hearing, I could not give much weight to any of the Exhibits as none of the persons attesting to Mrs Choi’s character was called to give evidence; further they were not sworn statements. Only two of the four appeared to know about any immigration irregularities.
CONCLUSION
44. I have taken into account all of the evidence before me. After having had due regard to the importance placed by the Government on the three primary considerations referred to above, but also having adopted a balancing process which takes into account all relevant considerations, as required by paragraph 2.2 of the Direction, I have decided that it is appropriate in the present matter that the discretion under s 501(2) of the Act should be not be exercised in Mrs Choi’s favour. The decision under review is accordingly affirmed.
DECISION
45. The decision under review is affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member G Ettinger
Signed:
AssociateDate/s of Hearing 10 November 2005
Date of Decision 16 December 2005
The Applicant Self Represented
Solicitor for the Respondent Mr A Chand, Clayton Utz Lawyers
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