Seo and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 674

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 674

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/426

GENERAL ADMINISTRATIVE DIVISION		)
Re		MIN KYUNG SEO

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis AM Q.C., Deputy President

Date14 July 2005

PlaceSydney

Decision  The decision under review is affirmed.

..............................................

R N J Purvis AM Q.C.
  Deputy President

CATCHWORDS

IMMIGRATION – contributory parent (CA-143) visa – remained in Australia unlawfully – obtained a passport and visa under a different name – false and misleading declaration in connection with application for the grant of a visa – Applicant conceded is a person not of good character – discretion considered – blatant disregard of terms or conditions of visa is very serious – expectations of Australian community visa not be granted – deterrent effect – no measurable hardship to children – decision affirmed

Migration Act 1958 ss. 234, 499, 501

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136

Re Grigorian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648

Re Ayaad and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 935

REASONS FOR DECISION

14 July 2005              The Hon R N J Purvis AM Q.C., Deputy President   

the application

1. Ms Min Kyung Seo (“the Applicant”) by her application under date 7 April 2004 seeks review by this Tribunal of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) refusing to grant to her father Mr Gi Cheol Seo a contributory parent (CA-143) visa. The refusal decision was made on the ground that Mr Seo did not pass the character test pursuant to section 501 of the Migration Act 1958 (“the Act”). The available discretion was not exercised in his favour.

2.      In the reasons for the refusal decision the Respondent included the following findings:

“…

30. Mr Seo has shown disregard for the laws of Australia. If a non-citizen intends to reside permanently in Australia, the Australian community would expect that person to obey Australian laws designed for the protection of the community.  Furthermore, the Australian community would expect non-citizens to be of a high moral quality and not engage in activities that undermine the integrity of Australia’s Migration Program.  The Australian community expects non-citizens who breach Australian laws while in Australia to have their applications for visas refused.

…

37. Mr Seo has two children, one of whom is an adult Australian permanent resident and the sponsor of his application for a Contributory Parent visa. Mr Seo’s daughter Min Kyung Seo obtained permanent resident status on 18 September 2002 on the basis of her “close ties” to Australia, having studied in Australia since August 1999.

38. Mr Seo’s daughter is a 19 year old who prior to her parents’ departures from Australia in 2002 and 2003 had not been separated from her parents.  It is likely that Mr Seo’s adult daughter would experience hardship as a result of lack of access to parental support should Mr Seo’s application be refused.

39. Mr Seo’s son Yun Seok Seo is currently in Australia as the holder of a Bridging A (WA-010) visa.  Mr Seo’s son was refused a student visa on 26 September 2003 as a result of failing to comply with visa conditions in relation to academic performance and class attendance.  Mr Seo’s son is a dependant applicant for a Contributory parent (CA-143) visa.

40. Mr Seo has five siblings, all of whom reside in Korea.  Mr Seo is married to a citizen of South Korea, who is a dependant applicant for a Contributory Parent (CA-143) visa.

…

50. I note Mr Seo disregarded Immigration Law by being in Australia unlawfully for a period of approximately two years…

…

53. Mr Seo remained in Australia in contravention of the Migration Act 1958 between 26 May 2000 and 14 May 2002…

54. The nature of Mr Seo’s conduct and its effect on the community is such that I gave this consideration great weight, having taken the view that the Australian community is entitled to protection from the possibility of such conduct.

…

55. I considered the length of time that Mr Seo remained in Australia unlawfully, his prior immigration history and the reasons stated as causing his unlawful stay in Australia.

56. I noted that Mr Seo departed Australia as the holder of a Bridging E (WE-050) visa on 15 May 2002.  I therefore placed moderate weight on his risk of recidivism.

…

57. In considering whether a decision to refuse to grant a visa to Mr Seo would act as a deterrent to other non-citizens who might engage in similar activities, I found that refusal in this instance may provide a deterrent effect.  However, I considered that this was not a significant factor and overall I placed little weight on this consideration.

…

59. Mr Seo has shown a disregard for the laws of Australia and has breached the trust of the Australian community. I gave considerable weight to this consideration.

Best Interests of the Children

60. Mr Seo has one adult daughter and one minor son, both of whom currently reside in Australia.  Mr Seo’s adult daughter is a permanent resident of Australia, however his son is the holder of a bridging visa and is included in his parent’s Contributory Parent visa application as a dependent.  As a result, a decision to refuse a visa to Mr Seo would not have the effect of separating Mr Seo from his son, or require Mr Seo’s son to depart his country of legal residence.  There are, therefore, no children aged less than 18 years that would be affected by a decision to refuse a visa to Mr Seo.

…

62. In reaching my decision I concluded that the serious nature of Mr Seo’s conduct and the expectations of the Australian community outweighed all other considerations above.”

3.      The Applicant is the holder of a close ties (AO-832) permanent visa granted to her on 18 September 2002. Both Yun Seok Seo, her brother, and Hyun Ja Lee, the mother of the Applicant, are dependent applicants for a contributor parent visa.  

the issues

4.      It was admitted on behalf of the Applicant, that her father resorted to an alternative identity and engaged in “gross deceit” calculated to by-pass the migration requirements in order to make an application to enter Australia.  The situation was created by Mr Seo for the purpose of not alerting the electronic travel authority system.  His conduct considered cumulatively is admittedly sufficient to warrant Mr Seo’s being found to be a person not of good character. Further, he made false statements in his evidence before the Tribunal.

5.      It is submitted, however, that the conduct of Mr Seo is not such as to preclude the available discretion being exercised in his favour.

the hearing

6.      At the hearing of the application for review the Applicant was represented by Mr C H Levingston, solicitor and the Respondent by Mr B Cramer, solicitor of Blake Dawson Waldron Lawyers.

7. The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T27, S1 to S11.  Written material tendered on behalf of the parties was admitted as exhibits and marked accordingly, namely:

Exhibit No	Description	Date
A	Statutory declaration of Min Kyung Seo	25 June 2004
B	Statutory declaration of Gi Cheol Seo	16 December 2003
C	Statutory declaration of Yun Seok Seo	25 June 2004
D	Statutory declaration of Hyun Ja Lee	16 December 2003
1	Letter from Eun Ok Kim to whom it may concern	15 March 2002

8.      Evidence was given by the Applicant and her father upon which they were each cross-examined.

relevant legislation and directions

9. The provisions of the Act here relevant are:

“501 Refusal or cancellation of visa on character grounds

(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.

…

(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)…

(ii) the person’s past and present general conduct;

…

the person is not of good character; or

…

499 Minister may give directions

(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

…

(2A)A person or body must comply with a direction under subsection (1).”

10.     The words “good character” as used in section 501 of the Act:

“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 whilst the latter is a review of subjective public opinion”.

(See Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431)

11.     It is not necessary for there to be a continuance of the instance of general conduct. It is sufficient if instances of general conduct be displayed but once or twice, thereby laying the “character bare very tellingly” (see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142).

12.     The Ministerial Direction 21 (“the Direction”) sets out matters to which decision-makers are to have regard in determining whether or not a visa applicant is a person of good character and accordingly whether or not the person passes the character test. One factor to be taken into account, as here relevant, is whether the visa applicant has shown contempt or disregard for the law including Immigration Law (paragraph 1.9 (a)). Thus Paragraph 1.9 (b) requires consideration to be given to:

“Whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement.”

13. If the Tribunal is not satisfied that an applicant for a visa passes the character test, the issue for determination, as already indicated above, is whether the decision of the Minister’s delegate be affirmed or set aside by exercise of the residual discretion under section 501 (1) of the Act. In making this determination the Tribunal is to have regard to the abovementioned Direction and as here relevant to the following provision:

“PART 2 - EXERCISING THE DISCRETION

2.1      If a non-citizen does not pass the Character Test,

decision-makers must have regard to the following considerations when

exercising the discretion to decide whether or not the non-citizen

should be permitted to enter or remain in Australia.

Weight of considerations

2.2      The Government is mindful of the need to balance a number of

important factors in reaching a decision whether or not to refuse or

cancel a visa.  In making such a decision, a decision-maker should

have regard to three primary considerations and a number of other

considerations.  The primary considerations are set out at paragraphs

2.3 - 2.16 and other considerations are set out at paragraphs 2.17 -

2.24. 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.”

14.     The three primary considerations that must be taken into account by decision-makers are: the protection of the Australian community, the expectations of the Australian community and in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.

15. With reference to the protection of the Australian community the Direction provides that the factors relevant to an assessment of the level of risk to the community of the entering or continued stay of a non-citizen include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated, including any risk of recidivism, and whether visa refusal or cancellation may prevent or discourage similar conduct. The Direction in this regard, as much as does the character issue, specifically refers to offences relating to the making of false or misleading statements in connection with entry or stay in Australia. Section 234 of the Act makes it an offence for a person to provide a statement or information that is false or misleading in connection with an application for a visa and prescribes significant sanctions for non-compliance.

16.     The Direction in paragraph 2.12 stipulates that the Australian community expects non-citizens to obey Australian laws while in Australia.  A visa refusal may be appropriate simply because the nature of the character concerned is such that the community would expect that the person would not be granted a visa.

17.     The Tribunal has frequently emphasised the importance of the observance of truth when dealing with officials in migration matters, especially when the truth is known only to the person making the statement (Re Grigorian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648). It is conceivable that documents can be false and information provided which is false without an applicant being aware of the inaccuracy, lack of correctness or falsity. It is integral to an assessment of character for there to be an appropriate consideration of the state of mind of the person providing a document or information and as to whether the applicant for a visa actively engaged in a stratagem to deliberately mislead immigration officials for the purpose of gaining a benefit or advantage. As was stated in Irving (supra), the moral qualities of a person are the factors to which attention is to be given.

movements of mr seo and his family into and out of Australia

18.     From the evidence tendered before the Tribunal the following situation emerges:

1998, 1 JulyMr Seo enters Australia as the holder of an electronic travel authority (ETA) permitting stay until 1 October 1998

29 AugustMrs Seo first enters Australia

7 September            Mrs Seo departs

29 September            Mr Seo applies for visa extension

8 DecemberMr Seo granted visa for stay until February 1999

1999, January  Mrs Seo returns to Australia and departs four days later

26 February              Mr Seo sought a further extension to his visa – granted to 12 March 1999

3 MarchMr Seo departs for Korea

20 MarchMrs Seo returns to Australia and remains until 2003

3 AprilMr Seo enters Australia as holder of an ETA on a new passport permitting stay until 3 July 1999

13 JuneApplicant first enters Australia

Mr Seo granted an extension on his visa to 17 September 1999

13 September            application by Mr Seo for long stay visa

bridging visa granted

2000,10 January               long stay visa application refused. Mr Seo appeals to Migration Review Tribunal

19 AprilMrs Seo refused student visa, appeals to Migration Review Tribunal

21 AprilMigration Review Tribunal rejects application by Mr Seo

26 MayMr Seo’s bridging visa expires

2001, 19 March                   Mrs Seo appeal to Migration Review Tribunal rejected

16 AprilMrs Seo’s bridging visa expires

2002, 14 May  bridging visa granted to Mr Seo

15 MayMr Seo departs Australia

19 JuneMr Seo enters Australia on new passport

2003,7 April  Mr Seo departs Australia

9 JuneMrs Seo departs Australia

relevant factual situation and findings of fact

19.     Mr Seo was born on 20 June 1952 and first entered Australia some years prior to 1998. He remained for a relatively short period re-entering the country in July 1998.  His wife Hyun Ja Lee was born on 8 September 1956 and first entered Australia in August 1998. The Applicant first entered Australia on 13 June 1999, her brother shortly after.

-   as to mr seo

20.     Mr Seo arrived in Australia in 1998 on a tourist visa valid for three months.  He said that his intent was to make enquiries about educational opportunities for his children and to “investigate the business market”. He sought out schools where he might enrol his daughter and son.  He met people, Koreans/Australians, who were, like him, in the business of exporting and importing animal products.  By February 1999 he had decided that he wanted to work in Australia and although he denied working contrary to his visa prohibition, did conduct interviews with like minded people, observed people, found markets and met with “other traders”.  He applied to the Respondent for an extension to his visa but realising that the intent was in fact to work, the application was refused.

21.     In March 1999 Mr Seo left Australia returning on an ETA and with a new passport and visa, the latter valid until 3 July 1999.  He obtained an extension and in September 1999 applied for a long stay visa which was refused.  An appeal to the Migration Review Tribunal was rejected.  Although his bridging visa, granted when his Migration Review Tribunal appeal was pending, expired in May 2000, he says of this he was not aware, believing that he could remain in Australia whilst he canvassed the possibility of applying for a different kind of visa, for example a business visa.  It was, he said, when discussing the latter with a migration agent, that he found out his bridging visa had expired and also that his own passport (which had expired on 1 April 2000) and those of his family members had been lost by the agent.  This fact is confirmed by a letter from the agent.

22.     Mr Seo says that between July 1999 and May 2002 he made the various visa applications and appeal in order to extend the time of his stay in Australia.  When the long stay visa application was refused he “just gave up”.  At the time the children had arrived, they were experiencing difficulties and “I wanted to stay while they were at school and become familiar with the environment”. 

23.     Mr Seo left Australia in May 2002 but one month later returned on a passport showing his name as “Lawrence Gicheol Seo” and not “GI Cheol Seo” as it had been on his earlier passport as used when earlier entering and leaving Australia.  He is a Catholic by persuasion and “Lawrence”, he said, is his “Catholic Christian name”.  Although the tourist visa that he obtained using the new passport expired in September 2002 he remained in Australia until 7 April 2003.

24.     Overall Mr Seo between the 1 July 1998 and 7 April 2003, a period of about five years, resided in Australia for four years and seven months.  At all times his application was for a tourist visa, he stating he intended to stay in Australia for short periods, yet he never intended, he admitted, to in fact travel to Australia for short periods of time.  He first came, he said, as a genuine tourist but “saw a beautiful country and that is why I overstayed”.  “I was interested in the country. The last paradise on earth. After I saw how it is I wanted to stay more” so he said “family members one by one started to come into the country”. The Applicant, the daughter, says this was always the intention of the family. The explanation given by him is not consistent with Mr Seo’s declared concern for his children being the reason for his overstaying his visas.

25.     Indeed, in Mr Seo’s statutory declaration (Exhibit B) he makes no mention of any intent to remain permanently in Australia but seeks to explain his overstaying his visas by way of expressing concern for the welfare of both the children and the need to provide support for them.  His written statement that he remained in Australia “until she was more mature” is hardly consistent with his oral evidence. His written statement wherein he says that he left Australia in May 2002 and had by 16 December 2003 “been in Korea for about 19 months now” is patently untrue.

26.     In his oral evidence before the Tribunal, Mr Seo said that he did not initially plan to stay for a lengthy period with the children in Australia. They could, he said, easily come and study as international students. “They could have come and studied and stayed on their own”. Later in his evidence Mr Seo said that it was after the Applicant came to Australia that the family formed the intent that it wanted to remain permanently in the country and Mr Seo then made enquiries about obtaining a business visa.

27.     Mr Seo is an experienced traveller and business executive.  He is currently managing director of Coral Trading Co Ltd an importer into Korea from Australia of beef products.  He has always engaged in the import/export business and while living in Australia was, he says, supported with his wife and children by the proceeds of the realisation of some of his assets and income from his business importing into Korea motor vehicle parts from Japan.  He had business connections with Australia from at least 1995.  The company Coral Trading Co Ltd is he says “going very well, it is successful”

-   as to the Applicant

28.     The Applicant first entered Australia in June 1999 and applied for and was granted a student visa in August 1999 starting school shortly thereafter.  Apart from occasions when she has returned to Korea on holiday, the last such occasion being June/July 2004, she has remained living in this country completing her secondary education and becoming a student at the University of New South Wales, then the University of Canberra and now presently at the University of Sydney where she is undertaking a Bachelor of Arts course majoring in Japanese.

29.     The Applicant says that at the time of her arrival in Australia she was anything but fluent in English and experienced difficulty in adjusting to life in a new country.  Gradually she adjusted to the new environment.  By the time she was in year 11 she “felt comfortable and was enjoying life”.  Her brother took longer.  On account of his being bullied, having trouble with teachers and not performing well in his studies, he changed schools on a number of occasions (Exhibit C). According to the Applicant, by June 2003 her brother “was showing positive signs that he was happy with life here in Australia”.  However, on 26 September 2003 his student visa was refused.  He applied to the Migration Review Tribunal.  The visa has now been restored and he is studying hotel management at university.

30.     Ms Seo obtained permanent residence status in Australia on 18 September 2002, having established to the satisfaction of the relevant authorities that she was living away from her parents for at least six months even be it Mr and Mrs Seo, her parents, were also living in Australia at the time her application was made. Whilst living away from her parents in order to qualify for the close ties visa, her costs and expenses of the home stay were payed for by the parents.  The Applicant admitted to being financially dependent on them.  She was then in year 11.  She occasionally returned to live with her parents.  It is of some importance to note in the context of the reasons for his staying in Australia as advanced by Mr Seo that the Applicant was said (Exhibit 1) to have been staying with Eun Ok Kim from January 2001 to at least 15 March 2002.  She was at this time, she said, still dependent on her parents.  She admitted staying away from her parents in order “to get permanent residency” but contended that “it was my idea.  I was aware of this eligibility criteria”.  She denied however obtaining the visa in order to sponsor her parents.

31.     The Applicant in her application for special migration to Australia signed 22 March 2002 stated that her parents were then residing in Korea, whereas in fact they were both resident in Australia. She said in her evidence with reference to her application that she was aware the “form was incorrect” explaining her untruthful statement by saying “I thought my parents might experience difficulty in relation to their visa status (they were each then illegally in Australia). I did it to protect my parents”. Not a commendable practice one might think or the setting of a good example, for a then 18 year old girl to not tell the truth in relation to a migration matter.  She was fully aware of the then migration status of her parents.

32.     The Applicant confirmed, contrary to the evidence of her father, that it “had always been my parent’s intention to move to Australia permanently”.  She, whilst a university student, is still reliant on her parents for their financial support, but she is also working on a part time basis “for my mother’s company which has a branch in Australia; S M Exports”.  She earns enough, she said, for her living expenses.

33.     The Applicant is now living with her brother, he being fully supported by his parents. According to Mr Seo, the son plans, if allowed, to stay in Australia after he completes his university course and seek employment in this country.

generally

34.     I have little doubt that Mr Seo and his wife meant well for their children.  I do not accept that the children’s welfare however was a primary motivation for them staying in Australia beyond the permitted time. I am satisfied that they sought to take advantage of the migration system. They knowingly overstayed their visas. Mr Seo deliberately obtained a new passport using a name different to that earlier used in order to obtain another tourist visa. He failed to declare this fact in the present application.  I am satisfied that it was the intent of Mr Seo from the time he first arrived in Australia, if not earlier, to do all things possible to establish a permanent residence in the country other than by making a proper application to that end and thereby declaring his true intent.

35.     Even though the children are now 18 years of age and older, they are each still financially supported by their parents.

character

36. As already noted, it is conceded by Mr Levingston on behalf of the Applicant that within the meaning of section 501 of the Act, Mr Seo is a person not of good character. Being satisfied that Mr Seo:

·overstayed his visitors visa and thereby became an unlawful non-resident;

·obtained a passport and visa in a different name;

·obtained the passport and visa well knowing that he would be unable to enter Australia by using his earlier migration documents;

·declared his intent in applications for visas to be in Australia as a tourist and for short periods when his true intent was to remain in the country as long as possible and seek to become a resident;

·falsely declared in a statutory declaration (T23/166) that he had departed Australia in May 2002 and thence lived in South Korea;

·failed to declare in the subject application for a contributing parent visa that he had used another name and that he had entered Australia in June 2002;

·falsely stated in the subject application that he had lived in Korea since May 2002,

I am able to accept the concession made on the Applicant’s behalf.  The Tribunal finds that Mr Seo on account of his past and present conduct is a person not of good character.

discretion

37. Being satisfied that Mr Seo is within the meaning of the Act a person not of good character, I am required pursuant to the Minister’s direction to give appropriate weight to the primary and other considerations there enumerated. Having done so I am then required to exercise my discretion as to the refusal or otherwise of a visa being mindful of the result of the weighing exercise.

38.     The considerations so relevant have been earlier detailed.

39.     Whilst conceding that Mr Seo did overstay his visa, Mr Levingston contends that such conduct is not an offence and is “not very serious”.  Overstaying a visa may not be an offence but in my mind it is serious, especially where as in the present case, the conduct was deliberate. As was discussed in Re Ayaad and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 935, Australia as a sovereign country has the right to admit onto its land such persons as it considers warrant entry. The entry is to be subject to such terms and conditions as it decrees. Conduct contrary to any such term or condition can be serious. Blatant disregard of such a term or condition as was the case with Mr Seo is very serious.

40.     Even if I was to accept, which I have grave reservations in so doing, that the extended stay in Australia of Mr Seo was primarily in order for him to give assistance to his children, there was no good reason, if a visa was refused to him, for his not returning with the children to South Korea.  It may well be that they were only able to stay in Australia because of their father being illegally in the country.

41.     It was submitted on behalf of the Applicant that the reference in Direction 21, paragraph 2.6 (c) to “making a false or misleading statement in connection with entry or stay in Australia” as being “considered by the government to be very serious” was in the context of the other acts detailed in the paragraph “a distortion of the migration power”. I do not accept this as being so. Each of the acts or commissions referred to in paragraph 2.6 is “serious” and to be considered so. It is the circumstances in which act/s was/were committed and the gravity of the specific conduct that will determine the consequence. In this instance the misconduct of Mr Seo was committed knowingly, deliberately and to achieve for him and his family an advantage to which he and they was/were not entitled.  Mr Seo never had the intent of staying in Australia for only a limited period of time.

42.     The Australian community is entitled to be protected from the behaviour of such who would breach the Australian laws where it suits them to do so.  Mr Seo falls into this category.  It was said that his improper conduct related only to his contact with the Respondent.  This may be so, but he has displayed a propensity to act regardless of the law.  The Australian community is entitled to be protected against such a person.  He poses a risk to the community.  He may well choose to again so act even be it contrary to legislation other than that relating to migration.  Having in mind the duration of his conduct and his involvement of others in it, the Tribunal can not be satisfied that he would not again act regardless of the law.

43.     Mr Seo in his evidence stated that “there are many people living in Korea who would like to go to Australia”.  If the facts of this matter were known to such people and they realised that conduct the like of that engaged in by Mr Seo was such as to preclude a visa being granted, then prospective immigrants might well be conscious of the need to be honest and forthcoming with the Respondent and not seek to mislead and misrepresent a situation.  The Australian community, being fully informed of the above factual situation, would not expect a visa to be granted.  It would be seen in effect as representing, and as submitted on behalf of the Respondent, “a reward for successfully evading the law”.

44.     The Applicant and her brother are not now children within the meaning of the Direction.  They have been and are still financially supported to a measurable extent by their parents, even be it the latter live in South Korea. This will not change. The children are living together and making their own lives. They are able to travel to South Korea and visit their parents. Any hardship they might experience is to be seen in light of their current situation. I do not consider on the evidence before the Tribunal that the refusal of a visa to their father would cause a measurable hardship to the children.

45.     There is no evidence as to hardship resulting to any other persons including Mr Seo and his wife, by reason of a visa not being granted.

46.     I am satisfied that the primary considerations in this matter outweigh other relevant considerations.

47.     Accordingly, the decision under review is affirmed.      

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM Q.C., Deputy President

Signed:         A. Garcia           .....................................................................................

Associate

Date/s of Hearing  21 October 2004, 14 and 15 February 2005, 20 June 2005

Date of Decision  14 July 2005
Solicitor for the Applicant          Mr C H Levingston
Solicitor for the Respondent     Mr B Cramer