Shin and Minister for Home Affairs (Migration)
[2018] AATA 2108
•5 July 2018
Shin and Minister for Home Affairs (Migration) [2018] AATA 2108 (5 July 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2167
Re:Yong Shin
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Dr L Bygrave, MemberDate:5 July 2018
Place:Sydney
The Tribunal affirms the decision of the delegate of the Minister made on 12 April 2018 to refuse Mr Yong Shin’s application for a Bridging E visa.
..................[sgd]......................................................
J W Constance
Deputy PresidentCatchwords
MIGRATION – application for a Bridging E visa – whether the applicant is of good character – whether discretion should be exercised to revoke the refusal of the visa – Ministerial Direction No 65 – protection of the Australian community – nature and seriousness of conduct – risk to Australian community should the applicant commit further offences or engage in other serious conduct – expectations of the Australian community – Interpol red notice – allegations of fraud – whether applicant intends to stay in Australia – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Anaki and Minister for Immigration and Border Protection [2016] AATA 693
Secondary Materials
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014
Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014
REASONS FOR DECISION
Deputy President J W Constance
Dr L Bygrave, Member5 July 2018
INTRODUCTION
The applicant, Mr Yong Shin, is a 60 year old citizen of the Republic of Korea.
Mr Shin arrived in Australia with his wife, Ms Young Lim, on 27 July 2013 as the holder of an Electronic Travel Authority (Class UD) visa. He was subsequently granted a Visitor (Class FA) visa on 14 October 2013 and has resided in Australia unlawfully since this visa ceased on 25 April 2014.
On 20 December 2017, Mr Shin and Ms Lim were detained by Australian Border Force Officers. Mr Shin applied for a Bridging E visa on 20 December 2017, naming Ms Lim as a dependant applicant to this application, on the basis that he was making arrangements to depart Australia.
This application for a Bridging E visa was refused because the delegate of the Minister was not satisfied Mr Shin and Ms Lim had a genuine intention to depart Australia. Mr Shin and Ms Lim sought a merits review of this decision and on 9 January 2018, the Migration and Refugee Division of the Tribunal remitted the matter to the Minister for reconsideration with a direction that Mr Shin and Ms Lim were making acceptable arrangements to depart Australia.
On 16 February 2018, a delegate of the Minister issued Mr Shin and Ms Lim with a notice of intention to consider refusal of their visa application under subsection 501(1) of the Migration Act 1958 (Cth) (the Act). On 7 March 2018, a representative for Mr Shin and Ms Lim provided a written response and attached supporting documents.
Pursuant to subsection 501(1) of the Act, a delegate of the Minister decided on 12 April 2018 to refuse to grant Mr Shin and Ms Lim a Bridging E visa. The delegate made separate decisions for Mr Shin and Ms Lim, who were notified of these decisions by email on 13 April 2018.
In accordance with paragraph 500(1)(b) of the Act, Mr Shin applied to the General Division of the Tribunal on 21 April 2018 for a review of the Minister’s decision.
In response to submissions from legal representatives for the Minister and Ms Lim and Mr Shin, the Tribunal directed that the matters of Shin and the Minister for Home Affairs (2018/2167) and Lim and the Minister for Home Affairs (2018/2174) be heard together, and that the evidence in each application be taken to be evidence in the other application.
The matters were heard in Sydney on 20, 21 and 22 June 2018. Mr Shin and Ms Lim attended the hearing in person and gave oral evidence. They had legal representation and were assisted by an interpreter of the Korean language.
The Tribunal notes that the facts of each application are distinct and, consequently, we have made separate decisions with respect to the applications of Mr Shin and Ms Lim.
RELEVANT LEGISLATION AND POLICY
The power to refuse a visa
Subsection 501(1) of the Act provides that the Minister may refuse to grant a visa if the applicant does not pass the character test as defined in subsection 501(6) of the Act. Relevant to this matter, paragraph 501(6)(h) of the Act states:
(6) For the purposes of this section, a person does not pass the character test if:
…
(h) an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
If an applicant does not pass the character test, then the Minister (and, therefore, the Tribunal on review) has discretion to refuse the visa.
In accordance with subsection 499(2A) of the Act, the Tribunal is required to have regard to guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA[1] (the Direction) when considering whether to refuse an application for a visa.
[1] Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014.
The Direction sets out the policy of the government and includes introductory statements about the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in this country.
Clause 6.3 of the Direction sets out the Principles which provide a framework to approach deciding whether to refuse a visa under subsection 501(1) of the Act. These Principles state:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing consideration may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
ISSUES
The determinative issues for the Tribunal in this matter are:
·whether Mr Shin passes the character test as defined in section 501 of the Act; and
·if not, whether the discretion given by subsection 501(1) of the Act to refuse Mr Shin’s application for a Bridging E visa should be exercised.
BACKGROUND
Unless stated otherwise, the findings of facts in the following 12 paragraphs are based on the evidence of Mr Shin and Ms Lim.
Mr Shin had a “long and successful” career in Korea, which included holding positions as Acting President of the Korea Association of Realtors, Chairman at Korean Certified Real Estate Agent Information Communication Co. Ltd and Chairman of Certified Property Manager Association.[2] In September 2012, he was awarded the Order of Merit (the Dongbaek Medal) from the President of the Republic of Korea in recognition of his contribution to the Korean real estate industry. Mr Shin also described his active involvement in voluntary and philanthropic organisations in Korea.
[2] Exhibit A1 at [17]-[18].
Ms Lim studied law at Seoul National University. She graduated in 1983 and undertook further legal study for two years until 1986. She then worked as a prosecutor in Korea until she retired from this role at a “senior” level in 2010. Ms Lim explained that in her role as a prosecutor, she conducted cases in relation to murder, fraud and theft. She decided to retire in 2010 due to experiencing symptoms of severe depression. After her retirement as a prosecutor, she was employed as a lawyer at Pacific Legal from 2010 to 2012.
Mr Shin and Ms Lim acknowledged in their oral evidence to the Tribunal that they were well-known in Korea. They are concerned that the matters before the Tribunal could adversely affect their families’ reputations.
In June 2013, the son of Ms Lim and Mr Shin came to Brisbane to study English.
Soon afterwards, Mr Shin and Ms Lim decided to visit their son and they arrived in Australia on 27 July 2013. They resided in Brisbane for about 12 months, where they cared for their son and travelled to Sydney and Canberra. During this period, Mr Shin and Ms Lim resolved to stay and retire in Australia, primarily due to their health improving in Australia.
On 9 October 2013, Mr Shin lodged an application for a Visitor Tourist Stream (Class FA 600) visa, which was subsequently granted on 14 October 2013.[3] This visa ceased on 25 April 2014.
[3] Exhibit R4.
In late 2013, Mr Shin and Ms Lim decided to sell their home on Jeju Island, Korea. They did not return to Korea during this process. Mr Shin’s brother assisted with the process of organising their belongings from their home on Jeju Island to be packed and shipped to Brisbane.
In mid-2014, Mr Shin and Ms Lim moved from Brisbane to Sydney. In Sydney, they resided in various rental properties until they were detained by Australian Border Force Officers on 20 December 2017.
Mr Shin and Ms Lim’s activities during their time in Sydney involved playing golf five to six days per week and participating in activities at their local church and in the Korean Catholic community.
The son of Mr Shin and Ms Lim returned to Korea in mid-2015. Mr Shin and Ms Lim also have a daughter who continued to reside and study in Seoul, Korea from 2013 to the present. Ms Lim’s father and Mr Shin’s parents and siblings also continue to reside in Korea.
Neither Mr Shin nor Ms Lim has returned to Korea since July 2013.
Following the detention of Mr Shin and Ms Lim at Villawood Immigration Detention Centre on 20 December 2017, the belongings of their home in Burwood were packed up by removalists and placed in storage.
FURTHER EVIDENCE AND FINDINGS OF FACT
The conduct of Mr Shin and Ms Lim in Korea prior to arriving in Australia
Ms Lim provided a written statement to the Tribunal signed and dated 30 May 2018.[4] In this statement, she set out the following information relating to her conduct in Korea prior to arriving in Australia:
[4] Exhibit A2.
In mid-2012, Mr Oh Seok KWON, the complainant, was referred to me through the organisation that my husband was acting as a president.
At the time, due to medical conditions (depression) I was in process of retiring my career as a practising attorney in Korea. Prior to my resignation, I have worked as a prosecutor for about 23 years, until 2010.
On or about 25 July 2012, I have met with the complainant, with my husband. I took my husband to the meeting because I was aware of the complainant’s criminal history and served about 4 years in prison in Korea, and I did not feel safe to attend on my own.
The complainant requested that as he wanted to run for presidency of an esteemed association just like my husband, he wanted his prior convictions quashed.
The Interpol Notice is correct that we agreed an arrangement where I would review his previous charges and cases for a fee of KRW 0.1 billion and that if the previous convictions were quashed then a further fee of KRW 1.0 billion would be paid as a contingency fee. This agreement was in writing between the complainant and me. I have this document stored somewhere with my other personal belongings.
I confirm receiving KRW 0.1 billion to investigate and review the chances of appealing.
The complainant was aware that I was in process of resigning from my career. So I used my professional network and engaged another attorney, MR Dong Myung LEE, from CheoEum Law Firm.
I declare that most of the money received from the complainant was used to cover the legal costs for CheoEum’s services because I had stopped being an attorney.
In September 2012, when my husband received the Civil Order of Merit from the President of Republic of Korea, we both decided to retire and move to Jeju Islands, Korea. This is when I have advised the complainant that there was no merit to the case and I would not be continuing with the matter. The complainant accepted my resignation and he took all the case materials with him.
After this, I had thought that all parties’ dealings concluded. I declare that I did not receive KRW 1.0 billion as I advised him that there was no way chance of successful appeal, and we had not proceeded with the case.
On 16 February 2018, through our current migration agent, we found out that the complainant had brought a law suit against us in Jeju District Court in Korea, and the same court had issued the arrest warrant on 10 December 2013.
During the period when the lawsuit would have eventuated, we were already in Australia. We were never served any notification of lawsuits against us by the complainant.[5]
[5] Exhibit A2 at [7]-[18].
In a written statement to the Tribunal signed and dated 30 May 2018, Mr Shin set out the following information relating to his and Ms Lim’s conduct:
It is true that on or about 25 July 2012, my wife asked me to come with her as she was meeting the complainant (Mr Oh Seok KWON). She told me that she did not feel safe alone with him as she was aware that he had a conviction of about 4 years in prison in Korea. So I attended the meeting at the hotel.
During the meeting, I observed that my wife and the complainant had come to an agreement (the Agreement) that he will engage my wife’s services in that she will use her resources to review and analyse his previous charges and cases for a fee of KRW 0.1 billion. He agreed to pay KRW 1.0 billion as a contingent fee on a condition that the appeal, if any, is successful.
To my knowledge, my wife received KRW 0.1 billion, and investigated and reviewed the complainant’s chances of appealing. However, to my knowledge my wife concluded that he had no reasonable chances and have [sic] not proceeded with the appeals.
I had assumed that the Agreement between the complainant and my wife had been completed as the appeal had not been filed.
On about 16 February 2018, my wife and I were told by our migration agent that the complainant had brought a lawsuit against us in Jeju District Court in Korea, and the same court had issued an arrest warrant under my name on 7 February 2014.
During the period when the lawsuit would have eventuated, my wife and I were already in Australia. We were never served any notification of law suits against us by the complainant.
My wife and I now have engaged a legal representative in Korea to resolve the issue.[6]
[6] Exhibit A1 at [10]-[16].
At the Tribunal hearing, Ms Lim and Mr Shin provided further oral evidence to the Tribunal. On the basis of this evidence, we are satisfied that:
·Mr Shin knew Mr Kwon through professional and social networks prior to 2012.
·Mr Shin introduced Ms Lim to Mr Kwon at a social event in 2012. Subsequently, Ms Lim and Mr Shin met with Mr Kwon on approximately three to five occasions in 2012. These meetings involved discussions about how Ms Lim, with her experience as a prosecutor, could assist Mr Kwon in relation to his prior convictions.
·Ms Lim received KRW 0.1 billion to undertake this work for Mr Kwon in 2012-2013.
When giving evidence, Ms Lim and Mr Shin made several statements which, for reasons set out below, we cannot be satisfied are correct. These statements are:
·Ms Lim did not receive KRW 1.0 billion from Mr Kwon.
·A five-page document was signed by Ms Lim and Mr Kwon that sets out their arrangement and “promises” made by Mr Kwon to Ms Lim.
·This document is amongst the possessions of Ms Lim and Mr Shin that are in storage in Sydney. The document must be located by Ms Lim and Mr Shin prior to their departure from Australia to Korea as it provides evidence about the commercial agreement between Ms Lim and Mr Kwon.
·If Ms Lim and Mr Shin return to Korea without this document, they may be arrested upon their arrival at Seoul airport.
Statement of Se Yeol Kwak
Mr Kwak is the legal representative for Mr Shin and Ms Lim in Korea. On 29 May 2018, Mr Kwak opined:
The matter is concerned with a financial dealing between the accused and the complainant. The allegation is purely based on the claims made by the complainant. Once the accused is in the position of accessing their documents and proving the facts involving the matter in Korea, I am of the opinion that the matter concerned shall be easily resolved.[7]
[7] Exhibit A3.
There is no information before the Tribunal regarding Mr Kwak’s qualifications and the basis for his opinion.
It is our view that Mr Kwak’s explanation for his opinion is brief and based on his reading of the Interpol Notice, facts told to him by Mr Shin and Ms Lim, and a general and pithy review of relevant laws and regulations. We, therefore, find it appropriate that we place limited weight on Mr Kwak’s statement.
Mr Shin’s unlawful residence in Australia from 25 April 2014 to the present
Mr Shin applied for an Electronic Travel Authority prior to his departure from Korea in July 2013 and a Visitor visa while staying in Brisbane in October 2013. This is not in dispute.
Mr Shin and Ms Lim told the Tribunal that they applied for an “investment visa” in early 2014, prior to their Visitor visas expiring, to enable them to stay in Australia.
Mr Shin said he recalled engaging with a “travel agent” and a “migration agent” in relation to their applications for Visitor visas. He said that he and Ms Lim discussed their applications for “investment visas” together but Ms Lim completed the requisite paperwork with the assistance of staff from his father-in-law’s company.
In a written statement signed by Mr Shin and dated 30 May 2018, he stated:
During our visit, we both fell in love with Australia, and decided to permanently migrate. We sought advice and were advised that we were eligible for an investment visa and so we engaged a migration agent for their services.
We followed their advice and instructions and believed that this visa was successfully lodged prior to our visitor visa expiring.
…
We were genuinely shocked when we learned that we were in Australia without a visa. We thought that we both had a business investment visa and we were counting down the days until we could lodge the permanent resident visa application, which we were advised by our migration agent we could do after four years…[8]
[8] Exhibit A1 at [4]-[5], [8].
Ms Lim told the Tribunal that she and Mr Shin applied for an “investment visa” in early 2014 with the assistance of staff from her father’s company. She said that her father’s Korean-based company opened an office in Australia during this time and employees of the company, named as “Mr Chong” and “Mr Kim”, advised and assisted her to lodge an “investment visa” application for her and Mr Shin. Ms Lim said that Mr Chong and Mr Kim were living and working in Australia during this period, but Mr Kim has now returned to Korea and Mr Chong is working in Indonesia.
Ms Lim said that the application process for an “investment visa” involved completing “a checklist” and providing AUD 5 million to invest into Australian companies or bonds. She also said her father loaned her and Mr Shin the amount of AUD 5 million. Ms Lim said she understood that after completing this process in early 2014 she and Mr Shin would be residing in Australia on a form of “bridging visa” and their “permanent visa” would be granted four years later.
Ms Lim, in her written statement dated 30 May 2018, noted:
My husband and I thought that we always had a valid visa during our time in Australia but it turns out that this was incorrect.
…
I was upset and distressed to learn that my husband and I were in Australia without a valid visa. We thought we would be becoming permanent residents one day but that will not be the case now.[9]
[9] Exhibit A2 at [3], [5].
We find there are inconsistencies between the evidence of Ms Lim and Mr Shin regarding the process of their application for “investment visas”. We particularly note the discrepancy between the oral evidence of Ms Lim and Mr Shin that the application process was undertaken with the assistance of employees from the company owned by Ms Lim’s father, and Mr Shin’s written statement that they were advised by a “migration agent”.
Mr Shin provided no documentary evidence to the Tribunal about his application for an “investment visa”, either in relation to the steps he and Ms Lim took to apply for an “investment visa” or to support his claimed investment of AUD 5 million in Australia. No written statements were provided to the Tribunal from either Mr Chong or Mr Kim, the employees who advised and assisted Ms Lim with the process of applying for an “investment visa”.
Ms Lim gave oral evidence that she spoke with both Mr Chong and Mr Kim by telephone after being detained in Villawood Immigration Detention Centre but provided little detail about these interactions.
Mr Shin apologised to the Tribunal for residing in Australia without a visa and expressed his shame at being detained in Australia. He submitted that his application for a Bridging E visa, naming Ms Lim as a dependent to his application, was solely for the purpose of finding the written agreement between Ms Lim and Mr Kwon, organising for their possessions currently in storage to be packed and sent to Korea, settling their financial debts in Australia, and transferring their funds (including the AUD 5 million invested in Australian companies/bonds) to Korea.
Queensland Magistrates Court proceedings
The Tribunal was provided with documents relating to charges made against Mr Shin in the Magistrates Court of Queensland for offences of “fraud – dishonestly obtains property from another” on 3 September 2013.[10]
[10] Exhibit R3.
Based on the evidence before the Tribunal, we are satisfied that these charges were dismissed in the Brisbane Magistrates Court on 9 May 2018 because the prosecutor offered no evidence. We find that it is appropriate in these circumstances to place no weight on these dismissed charges.
CONSIDERATION
Does Mr Shin pass the character test as defined in section 501 of the Act?
Annex A to the Direction provides guidance on the application of the character test. Section 2, paragraph 10 of the Direction refers to “Certain Interpol Notices” and states, in almost identical wording to paragraph 501(6)(h) of the Act, that:
A person will not pass the character test if an Interpol notice in relation to the person is in force, and it is reasonable to infer from that notice that the person would present a risk to the Australian community or a segment of that community.
Mr Shin is the subject of an Interpol Red Notice requested by the Republic of Korea and published on 4 December 2017, which includes the following details:
FUGITIVE WANTED FOR PROSECUTION
…
2. CASE
Country
Korea (Republic of)
Date
From 1 March 2012 to 1 July 2012
Summary of facts of the case
Suspect 1, SHIN (f/n) YONG CHEOL has served Acting agency Director of Korean Certified Public Accountants Association and suspect 2, Yeongseon, Lim (alias Yeongsun, Yim) impersonated attorney from prosecutor with the career of 23 years and told herself the spouse of suspect 1 SHIN (f/n) YONG CHEOL Even if suspect 2 LIM (f/n) YOUNG SUN is not qualified with attorney, suspects conspired at Lamada hotel in GangNam-gu Seoul Korea on July 25th, 2012, met the victim, OhSeok, Kwon and lied this saying – “I will apply for a retrial and win the case” So, by lying, she received KRW 0.1 billion as the name of attorney’s fee.
She acted like an attorney such as applying for a retrial and lying to victims and finally she received about total KRW 1.0 billion through banks, violating the law of attorney.
…
ARREST WARRANT OR JUDICIAL DECISION…
Charge(s): fraud
Law covering the offence(s): #1, Article 347, Criminal Act
Maximum penalty possible: Years: 10
…
Arrest warrant of judicial decision having the same effect
…
Date of issue
7 February 2014
Issued or handed down by
JEJU DISTRICT COURT
Country
Korea (Republic of)
…
3. ACTION TO BE TAKEN IF TRACED
LOCATE AND ARREST WITH A VIEW TO EXTRADITION:
Assurances are given that extradition will be sought upon arrest of the person, in conformity with national laws and/or the applicable bilateral and multilateral treaties.
PROVISIONAL ARREST:
This request is to be treated as a formal request for provisional arrest, in conformity with national laws and/or the applicable bilateral and multilateral treaties.[11]
[11] Exhibit R1 at 18.
There is no dispute, and the Tribunal is satisfied, that the Interpol Red Notice issued for Mr Shin is current and in force. The question for the Tribunal is whether it is reasonable to infer from this Interpol notice that Mr Shin would present a risk to the Australian community.
The Act and the Direction provide no guidance about the level of risk required to engage paragraph 501(6)(h) of the Act. The legal representatives for the Minister and Mr Shin provided extensive oral and written submissions about the interpretation of paragraph 501(6)(h). This included referring to paragraph 55 of the Explanatory Memorandum of the Migration Amendment (Character and General Visa Cancellation) Bill 2014, which states:
The purpose of new paragraphs 501(6)(g) and (h) of the Migration Act is to acknowledge that a person who is the subject of an adverse ASIO assessment or Interpol notice is likely to represent a threat to the security of the Australian community or a segment of that community. These amendments ensure that a person objectively does not pass the character test if either of these provisions apply to them, without the need to further assess them against the subjective criteria in subsection 501(6) of the Migration Act. [emphasis added]
Counsel for Mr Shin contended that the Tribunal must undertake the process of looking at the facts stated in the Interpol Red Notice and making an evaluative judgement that the evidence means the person would present more than a minimal or trivial likelihood of risk to the Australian community or a segment of that community.
The wording of paragraph 501(6)(h) of the Act requires us to examine whether, on the face of information set out in the published Interpol Red Notice, Mr Shin would present a risk to the Australian community.
Having regard to the facts in the Interpol Red Notice and replicated at paragraph 51 above, we are satisfied Mr Shin is the subject of an active Interpol Red Notice that outlines a summary of facts about the charges of fraud in which he and Ms Lim are alleged to have conspired in Seoul in 2012. This summary states that the charge of fraud involves significant amounts of money; payments of KRW 0.1 billion (approximately AUD 120,000) and KRW 1.0 billion (approximately AUD 1.2 million). An arrest warrant for Mr Shin was issued in Jeju District Court on 7 February 2014.
We are satisfied, based on the information on the face of the Interpol Red Notice in respect of Mr Shin and published on 4 December 2017, that it is reasonable to infer that Mr Shin would present a risk to the Australia community. The risk we have identified is that Ms Lim will engage in fraudulent conduct within the Australian community should she be free to do so.
Our reasons for making this conclusion are:
·the allegations in the Interpol Red Notice involve Mr Shin’s wife, Ms Lim, obtaining KRW 1.0 billion by fraud;
·Mr Shin would likely be arrested if he returns to Korea;
·Mr Shin could be imprisoned for up to ten years if he returns to Korea and is arrested; and
·there is a risk that if these allegations are true and Mr Shin and Ms Lim are residing in the Australian community, they would engage in fraudulent conduct similar to that alleged in the notice, causing distress and financial loss to a member or members of the Australian community.
For these reasons, we are satisfied that Mr Shin does not pass the character test in subsection 501(6) of the Act.
Should the discretion given by subsection 501(1) of the Act, to refuse Mr Shin’s application for a Bridging E visa, be exercised?
Informed by the Principles in the Direction set out in paragraph 15 above, we now address the considerations in Part B of the Direction to determine whether to exercise the discretion to refuse Mr Shin’s application for a Bridging E visa.
The primary considerations relevant to this matter are:
·the protection of the Australian community from criminal and other serious conduct; and
·the expectations of the Australian community.
The primary consideration of “best interests of minor children in Australia” is not applicable to this matter as there are no children in Australia who are relevant to this application.
We consider the relevance of other considerations for visa applicants set out in Part B (international non-refoulement obligations, impact on family members, impact on victim and impact on Australian business interests) in paragraphs 90 to 92.
In applying the primary considerations, we also have regard to clause 8(2) of the Direction, which stipulates information and evidence from independent and authoritative sources should be given appropriate weight.
Protection of the Australian community
The Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens is set out in clause 11.1(1) of the Direction and requires that the Tribunal consider:
(a)the nature and seriousness of Mr Shin’s conduct to date; and
(b)the risk to the Australian community should Mr Shin commit further offences or engage in other serious conduct.
Nature and seriousness of Mr Shin’s conduct
We first consider the nature and seriousness Mr Shin’s conduct in relation to his:
·admitted conduct in Korea prior to arriving in Australia; and
·unlawful residence in Australia from 25 April 2014 until the present.
In considering the nature and seriousness of Mr Shin’s conduct to date and the factors set out in clause 11.1.1(1) of the Direction, the Tribunal emphasises that we are not considering the charges referred to in the Interpol Red Notice because these are allegations only and have not been proven.
However, Mr Shin has admitted that Ms Lim was paid approximately KRW 0.1 billion by Mr Kwon to consider the likelihood of his prior convictions being quashed. We also note Ms Lim’s evidence that, despite receiving this payment, she did not provide in full the services for which she received payment but rather engaged another attorney, Mr Lee, to undertake the work she had agreed to do. We not know how much of the payment received from Mr Kwon was retained by Ms Lim.
The Tribunal further notes that Mr Lee, the person named in Ms Lim’s written statement as the attorney she engaged to undertake the legal work for Mr Kwon in 2012, is in a position to verify Ms Lim’s version of events. No written or other evidence was filed with the Tribunal from Mr Lee.
The Tribunal now turns to consider Mr Shin’s unlawful residence in Australia from 25 April 2014 to the present.
We do not accept that Mr Shin believed that he was a lawful resident in Australia following the cessation of his Visitor visa on 25 April 2014. We find several aspects of the evidence of Mr Shin and Ms Lim implausible and, on one occasion, their evidence was contradictory.
Mr Shin has had a career as a real estate agent dealing with legal contracts and property developments. Ms Lim is an experienced lawyer. In 2013, Mr Shin and Ms Lim applied for, and obtained, two different visas (an Electronic Travel Authority visa and a Visitor visa) to allow them to enter and reside in Australia.
Mr Shin’s evidence was that, after engaging a migration agent to assist with their applications for Visitor visas, he then delegated responsibility for their application for an “investment visa” to Ms Lim. This is despite Ms Lim suffering from depression.
There was no satisfactory explanation by Mr Shin about why he did not engage with the process of applying for an “investment visa”. It was also unclear why Ms Lim entrusted the important task of applying for a long-term residency visa (the “investment visa”) to two employees from the company owned by Ms Lim’s father.
We do not accept Ms Lim’s evidence that she believed she could leave all of the steps in her application for an “investment visa”, apart from completing a “checklist”, to two employees of her father’s company. We also do not accept that, for a period of four years, Mr Shin and Ms Lim believed they were residing in Australia on a form of “bridging visa” and did not make any enquiries about the progress of their application for an “investment visa”.
We also take into account that although Ms Lim spoke to both Mr Kim and Mr Chong (the employees from her father’s company who she says applied for the “investment visas” on behalf of her and Mr Shin) after she was taken into detention by Australian Border Force Officers, neither Mr Kim nor Mr Chong provided a statement for these proceedings. We expect that statements would have been provided had either of them been able to corroborate Ms Lim’s evidence as to the manner in which the “investment visa” application was made. There was no application made to the Tribunal to take the evidence of either Mr Kim or Mr Chong by telephone. The only explanation given by Ms Lim was that she had had an argument with Mr Chong and did not wish to call him to give evidence.
Mr Shin’s oral evidence to the Tribunal was frequently obtuse. At times, his oral evidence internally contradicted his written statement and previous oral answers. He only answered questions about when events occurred by noting general time periods, such as “mid-2014” or “after two years”. This lack of clarity about dates became essential to the credibility of Mr Shin as a witness, particularly when considering whether he and Ms Lim knowingly departed Korea in July 2013 and remained unlawfully in Australia from April 2014 so as to avoid legal proceedings related to their conduct in Korea.
Mr Shin’s answers to questions about activities undertaken since residing in Australia from July 2013 were also vague. Mr Shin only described playing golf and undergoing a knee operation in 2017. The brevity of Mr Shin’s evidence was surprising given he and Ms Lim have resided in Australia for almost five years.
Even after extensive oral evidence, we have many unresolved questions. These include:
·Why Mr Shin and Ms Lim have not returned to Korea since they departed on 27 July 2013 “on a holiday” to visit their son in Australia, particularly given their evidence that their son and daughter, and Mr Shin’s parents reside in Korea?
·Why Mr Shin and Ms Lim were content for their belongings in their home on Jeju Island to be packed and sent to Australia in late 2013 without them being present, but they now insists they must personally organise her belongings in storage to be shipped to Korea?
·Why Mr Shin and Ms Lim cannot undertake the task of locating the five-page document containing the agreement between Ms Lim and Mr Kwon under the escort of Australian Border Force Officers, or why either their children or legal representatives could not assist them to locate this document?
·How Ms Lim, a qualified lawyer, and Mr Shin, an experienced real estate agent, could provide no paperwork or documentation supporting their applications for “investment visas” and provision of AUD 5 million to Australian companies or bonds?
·How Ms Lim, with a career of more than 25 years as a prosecutor in Korea, did not seek to file statements from with Mr Lee, Mr Kim and Mr Chong, all of whom are potential witnesses who could corroborate her evidence?
·How Mr Shin could not have been made aware that a warrant for his arrest was issued on 7 February 2014 through the formal legal process?
We are satisfied that inconsistencies in Mr Shin’s evidence were not caused by interpretation between Korean and English languages, cultural factors or because he did not understand the questions.
We have given careful consideration to all of the evidence relating to Mr Shin’s residency in Australia after 25 April 2014 and we have concluded that Mr Shin resided in Australia for all that time knowing that he was doing so unlawfully. We find that this conduct was very serious.
The risk to the Australian community should Mr Shin engage in other serious conduct
In accordance with clause 11.1.2 of the Direction, the Tribunal must consider the “risk to the Australian community should [Mr Shin]…engage in other serious conduct”. To be clear, the Tribunal accepts that, at this time, there is no evidence that Mr Shin has committed any offences. Therefore, we only consider the risk to the Australian community if Mr Shin engages in other serious conduct.
At the Tribunal hearing, we stated that the credibility of Mr Shin’s evidence would be important to our consideration of whether to exercise the discretion to refuse Mr Shin’s application for a Bridging E visa. It is also our view that credibility about Mr Shin’s evidence is critical to our consideration of the risk to the Australian community if Mr Shin engages in other serious conduct.
Having considered all of the evidence, the Tribunal is satisfied there is a significant risk to the Australian community that, should Mr Shin be granted a Bridging E visa and be released into the community, he will not voluntarily leave Australia. We are satisfied the risk is that Mr Shin will revert to living in Australia illegally and attempt to evade immigration authorities. This will cause the Department of Immigration and Border Protection to divert resources to again detain Mr Shin.
In view of our significant concerns and substantial questions about Mr Shin’s evidence, we are satisfied that there is a risk to the Australian community that Mr Shin may engage in other serious conduct, in particular, Mr Shin may not depart Australia if he is granted a Bridging E visa.
Giving appropriate weight to all the evidence before the Tribunal, we find that the protection of the Australian community weighs in favour of refusing Mr Shin’s application for a Bridging E visa.
The expectations of the Australian community
The Direction at clause 11.3(1) states that the Australian community expects non-citizens to obey the law. It also notes that where there is an unacceptable risk that an applicant will breach this trust, it may be appropriate to refuse the visa application.
The Direction does not refer to studies or other evidence which would enable us to formulate a precise view of public attitudes and values. We consider the deliberation of Australian community expectations involves “bringing appropriate perspective and proportionality to bear in the assessment of risk” and that “the expectation must be considered contextually, relative to factors arising in relation to other principles” set out in the Direction.[12]
[12] Anaki and Minister for Immigration and Border Protection [2016] AATA 693 at [89].
We have found that Mr Shin has not been honest in the evidence he gave to the Tribunal and that there is a significant risk that he will not depart Australia in accordance with the requirement of the Bridging E visa he has applied for. Given these circumstances, the Tribunal is satisfied that the Australian community would not expect Mr Shin to be granted a Bridging E visa.
Other considerations
Clause 12(1) provides:
In deciding whether to cancel [sic] a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Impact on family members;
(c) Impact on victims;
(d) Impact on Australian business interests.
We are satisfied that none of these specified “other considerations” are relevant in this application.
Mr Shin did not raise any non-refoulement issues or state that he has concerns for his safety if he returns to Korea. He referred to a risk of being arrested if he and Ms Lim return without the document they seek to recover but did not argue that this is a reason he should not return to Korea. Mr Shin told the Tribunal that his application for a Bridging E visa is solely to facilitate his and Ms Lim’s return to Korea.
CONCLUSION
This decision ultimately relies on the weight given to each of the primary and other considerations. We have already indicated the first and third primary considerations weigh against Mr Shin. The second primary consideration and other considerations are not relevant to this application.
In these circumstances, it is not appropriate to revoke the refusal of visa decision.
DECISION
The Tribunal affirms the decision of the delegate of the Minister made on 12 April 2018 to refuse Mr Shin’s application for a Bridging E visa.
I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Dr L Bygrave, Member
........................[sgd]................................................
Associate
Dated: 5 July 2018
Date(s) of hearing: 20, 21 and 22 June 2018 Counsel for the Applicant: Mr S Richardson Solicitors for the Applicant: Mr K Ahn, Crux Migration Solicitors for the Respondent: Mr A Keevers, Sparke Helmore Lawyers
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