Soh and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 1324
•20 December 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1324
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1539
GENERAL ADMINSITRATIVE DIVISION )
Re JAY HO SOH
Applicant
And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis, QC, Deputy President
Date20 December 2002
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] The Hon R N J Purvis, QC Deputy President
CATCHWORDS
IMMIGRATION – South Korean citizen - refusal of subclass 050 Bridging Visa on ground Applicant not of good character – Migration Act 1958 s 501 – Ministerial Direction No 21 - illegal entry into Australia – Applicant worked illegally – imprisonment for occasioning actual bodily harm – systemic disregard for migration law – history of immigration malpractice – involvement in class actions – hunger strikes while in detention – not of good character due to past criminal and general conduct - deterrence - false declaration regarding de-facto relationship – protection of the Australian community – expectations of Australian community – discretion to grant Bridging Visa refused.
Migration Act 1958 – sections 501
Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422
Rokobatini v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 583
Kagi v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, No NG 1041 of 1997)
REASONS FOR DECISION
20 December 2002 The Hon R N J Purvis, QC, Deputy President
THE APPLICATION
This is an application by Mr Jay Ho Soh ("the Applicant") seeking review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") made on the 8 October 2002 refusing to grant him a subclass 050 Bridging Visa E.
The refusal was pursuant to section 501(6) of the Migration Act 1958 ("the Act") in that it was maintained the Applicant was and is a person not of "good character".
The issues for determination by the Tribunal are as to whether the Applicant does pass the Character Test and, if not, whether the residual discretion vesting in the Tribunal should be exercised in his favour.
the hearingAt the hearing of this application the Applicant appeared on his own behalf, the Respondent being represented by Mr Greg Peek, a senior lawyer with the Australian Government Solicitor.
There was introduced into evidence the documents lodged by the Respondent pursuant to section 501G of the Act marked G1 - G16. The following documentary material was tendered by the parties and marked accordingly:
Exhibit No. Description Date
Letter from Mr Peek Identity page of Applicant's former passport Claim for refugee status and solicitor's submissions Protection Visa decision record Decision of Refugee Review Tribunal 28 November 2002 - 10 May 1994 30 March 1995 3 December 1996
A Letter from Rev Kee Wan Kim, Sen Pastor, One Family Presbyterian Church Letter from Mi Sang Cho Letter from Stephen Cho Letters from Kee Wan Kim 15 November 2002 19 November 2002 19 November 2002 27 September 2002 4 November 2002
B Document marked "Urgent" 29 November 2002
The Applicant, Reverend Kee Wan Kim, Senior Pastor of the One Family Presbyterian Church and President of the Korean Solidarity for Human Rights in Australia Movement and Mr Stephen Cho, "an executive of the Korean community", were each cross examined.
the relevant legislation and direction
The Act provides with respect to refusal of a visa on character grounds that, pursuant to section 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.
"501 - Refusal or cancellation of visa on character grounds
...(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
..."
It is noted by the Tribunal that the words "good character" used in section 501 of the Act have been held to refer to the "enduring moral qualities of a person". Enduring moral qualities of a person necessitates objective assessment and are to be proved as a matter of fact (Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422 at pp 431-432).
A determination as to whether a person is or is not a person of good character is assisted by paying heed to the various matters detailed in the Ministerial Direction issued by the Minister pursuant to the provisions of section 499(1)(a) of the Act. The relevant Direction is Direction No 21. The Direction provides guidance in making a decision to either refuse or cancel a visa and is to be given due consideration (Rokobatini v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 583).
The Direction as here particularly relevant provides:
"PART 1 - APPLICATION OF THE CHARACTER TEST
The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test
1.1 Non citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. ...
1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501(1) provides the authority to refuse to grant a visa...
1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501(6).
...Paragraph 501(6)(c) - not of good character on account of past and present criminal or general conduct
1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.
...Subparagraph 501(6)(c)(ii) - past and present general conduct
1.9 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 a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
...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. ... 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.PRIMARY CONSIDERATIONS
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
Protection of the Australian community
...
2.5 The 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).a. The seriousness and nature of the conduct
2.6 It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:
...
(c) ... providing certain false or misleading information about a marital, de facto, or interdependency relationship, ... or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
...
(n) any other crimes involving violence or the threat of violence:·such crimes are of special concern to the welfare and safety of the Australian community; and
...
b. likelihood that the conduct may be repeated (including any risk of recidivism)
2.10 It is the Government's view that the person's previous general conduct ... are highly relevant to assessing the likelihood of an offence and risk of recidivism.
...c. general deterrence - the likelihood that visa refusal or visa cancellation would prevent (or inhabit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.
...Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect.
...OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other maters, 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. These other considerations may include:
...
(d) family composition of the non-citizen's family, both in Australia and overseas;
...
(g) the nature and seriousness of the offence(s) or alleged offence(s) …
...
(h) any evidence of rehabilitation and any recent good conduct;
whether the application is for a temporary visa or permanent visa;
..."
the factual situation
The Applicant was born in South Korea on 13 June 1964. He completed his secondary education in 1981 and in 1983 enrolled at Dong-A University in order to study engineering. He was involved in student strikes and participated in demonstrations. He was expelled from the University in 1984 and drafted into the army. The Applicant spent three years in military service, being arrested and detained on two occasions on account of his participation in demonstrations and "reading political texts on democracy". His military service ended in 1987 following which he stowed-away on a cargo ship, leaving the ship in April 1987 whilst it was at Adelaide seaport, South Australia.
Within a few weeks of his "deserting ship" he travelled to Sydney where he obtained employment and worked without a permit as a kitchen hand, cook and later as a carpenter. The Applicant then became unemployed. In December 1993 he lodged a subclass 903 Permanent Residence application as a person illegally in Australia on or before 18 December 1989. The application was based on an alleged de-facto relationship then existing and consequential hardship if he should be required to leave Australia.
However prior to a decision being reached on the application the alleged de-facto spouse denied the relationship. The application was refused. In due course the Applicant was charged under the Act with making a false statement, was found guilty and convicted and on the 26 November 1996 was sentenced to three months periodic detention expiring on 5 March 1997.
On the 9 May 1994, just under a month from the date of the Permanent Residence application being refused, the Applicant applied for a Protection Visa. The application was refused. The Applicant appealed to the Refugee Review Tribunal, which on 3 December 1996 affirmed the decision under review. The Applicant had recited his above-mentioned activities whilst a student and in the army with the consequent attitude of the South Korean authorities towards him as grounds for the grant to him of a Protection Visa. On 5 February 1997 he made a request for a ministerial intervention which was refused on 2 December 1997.
Pending a decision being reached on the section 417 request, application was made on 7 February 1997 and thereafter for Bridging Visas which were granted on 16 April 1997, 6 September 1997 and 5 December 1997, the latter valid until 27 January 1998. Each of the visas so granted was without permission to work. In fact the Applicant worked without permission both prior to and during the currency of the bridging visas as a kitchen hand, carpenter, cook and taxi driver.
Eight days after the Applicant was advised of the Minister's decision, on 10 December 1997, he was convicted on a charge of assault occasioning actual bodily harm and sentenced to six months imprisonment commencing on that date and expiring on 9 June 1998. The applicant appealed against his conviction, such Appeal being subsequently dismissed. A fourth Bridging Visa was granted to cover the period of incarceration. It was on the completion of his term of imprisonment that the Applicant was detained under section 189 of the Act and placed in Villawood Immigration Detention Centre where, except for a period when he was transferred to a Remand Centre, he has remained to this time.
On 20 March 1998 whilst serving his custodial sentence the Applicant became a party to a Class Action in the Federal Court (Kagi v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, No NG 1041 of 1997)) which action was dismissed on 8 July 1999. He applied for a resolution of status visa pending a decision in the Class Action. This application was refused. On the same day as he was released from prison and then detained under section 189 of the Act, the Applicant again applied for a Bridging Visa seeking release pending a decision in the Kagi Class Action. This application was refused, this decision being affirmed by the Immigration Review Tribunal on 17 June 1998. Five weeks later the Applicant lodged a further Bridging Visa application which was refused, the Immigration Review Tribunal affirming the refusal decision on 9 September 1998. An appeal to the Federal Court of Australia was subsequently dismissed.
On 4 February 1999 the Applicant engaged in an altercation with another detainee and "landed a punch..... on the left eye". On the same day he lodged a further visa application which was withdrawn on 8 February 1999 and replaced by another application on 15 February 1999. The latter application was refused, the refusal decision being affirmed by the Immigration Review Tribunal on 24 February 1999. A ninth Bridging Visa application was lodged on 21 April 1999, refused, the refusal being affirmed by the Immigration Review Tribunal on 29 April 1999.
On 7 June 1999 the Applicant was party to an incident at the Detention Centre (details of which will be considered later in these reasons) as a consequence of which on 16 June 1999 he was transferred to the Metropolitan Remand and Reception Correctional Centre where he remained until 1 March 2000.
Five days after the dismissal by the Federal Court of Australia of the Kagi Class Action and on 13 July 1999 the Applicant joined the Lie Class Action. This litigation was heard by the High Court of Australia in October 2001, a decision affecting only the primary Applicants being handed down in August 2002. The matter remains on foot so far as the Applicant is concerned. He may apply to have his position determined by the Federal Court, failing which his application will be dismissed on 1 June 2003. No such application has yet been made.
The Applicant applied to the State Ombudsman in respect of his removal to the Remand Centre. Following on a directive from the Ombudsman, not less than seven detention reviews were undertaken, the last being on 15 February 2000, each of which recommended that he remain at that place.
On 25 November 1999 and whilst in the Remand Centre the Applicant made an application for a Bridging Visa which was refused, the refusal decision being affirmed by the Immigration Review Tribunal. The Applicant threatened to stage a hunger strike unless he was given an explanation as to why he was being detained at the Remand Centre. He commenced the strike and was moved to the prison hospital. He was formally advised that owing to his previous behaviour, his return to Villawood would pose a threat to the good order and management of that Centre. The hunger strike ceased on 18 January 2000.
Bridging Visa applications were lodged by the Applicant on 3 April 2000, 24 August 2000 and 12 March 2002, each being refused and each refusal decision being affirmed on Appeal. An application lodged on 28 March 2002 was considered to be invalid under section 74(2) of the Act.
On 29 July 2002 the Applicant lodged his fifteenth visa application. This application was refused under section 501 of the Act and is the subject of the present appeal to this Tribunal.
incident at villawood immigration detention centre 7 june 1999The evidence as to this incident tendered before the Tribunal is to the following effect.
The Operations Manager and the Centre Manager of the ACM, the operators of the Detention Centre, recite that the Applicant was one of a large group of "Asian detainees" who gathered in support of a detainee about to be removed from Australia. The Applicant, with another Korean detainee and an Indonesian detainee, demanded that the detainee be released "or there would be big trouble" and that "they did not care what they had to do". When asked by the Operations Manager whether he had threatened the lives of officers, the Applicant replied that "they didn't care what they had to do". The Manager assessed the Applicant and the two others to be "high risk" having threatened the lives of officers, supervisors and management and the security of the Centre and that to house them in a low security environment was inappropriate. They were accordingly transferred to a secured place.
In the "Notice of Transfer to Person in Immigration Detention" , the reasons for transfer were noted as (G5, p 56):
"You were involved on 7/6/99 in agitating other detainees towards violence to prevent the removal of another detainee. As you made threats to the lives of staff and present a threat to other detainees and to the good management of the low security environment your unacceptable behaviour cannot be managed in the low security environment of the IDC. Counselling about your behaviour in the past has not resulted in an improvement and it has been deemed appropriate to transfer you to a State facility".
The Applicant refused when requested to sign the notice.
The Applicant maintains, along with Reverend Kim and Mr Cho, who obtained their views from what has been said and written by a person associated with Amnesty International, that "without trial sending a person to jail is against human rights".
On the basis of the evidence before it the Tribunal is satisfied that the authorities acted appropriately in having the Applicant transferred. He was the author of this action. The transfer was not by way of punishment but to ensure order and proper management of the Detention Centre. The Applicant was returned to the Detention Centre when that course was considered appropriate.
support for the applicantOn the same day as his application for a Bridging Visa, the subject of the present application, was received by the Respondent, the Applicant advised the Respondent that a demonstration would be held at the Detention Centre by supporters protesting for his release from detention. A petition signed by detainees was tendered before the Tribunal (Exhibit B).
The Reverend Kee Wan Kim caused a further form of petition to be available at his church expressing opposition to "going to jail without trial", and invited persons to sign it after the church service (Exhibit A). He was not able to say how many, if any, of the signatories knew the Applicant personally. They had become aware of him through the Korean newspaper and an article in it by the person associated with Amnesty International. Reverend Kim conceded in the course of his cross-examination that his evidence was also based on that article.
The Applicant deposed to his change of character since being in the Detention Centre and said that if given a chance he "can become a good character. … I would like to show to Immigration and people in the community what sort of changes I have made".
The Applicant has undoubtedly been detained at the Detention Centre for a relatively long period of time. However this is as a consequence of the action taken by him in joining the Class Actions and making numerous applications for a visa. The Respondent has not sought to remove the Applicant from Australia whilst the legal proceedings to which the Applicant is a party have not been determined. The detention of the Applicant is as a consequence of decisions made and a course of conduct engaged in by him. Likewise his removal from the Detention Centre to the Remand Centre was as a consequence of his own conduct. Whilst the Tribunal understands the position taken by those supporting the Applicant, particularly Reverend Kim and Mr and Mrs Cho, this stance may well be attributable to and the consequence of a misunderstanding on their part as to the reason or reasons behind the Applicant's detention.
the "not of good character" assessmentThe circumstances relevant to an assessment of the enduring moral qualities of the Applicant include those associated with the following events or situations:
· Conduct whilst living in South Korea;
· Entry into Australia without a visa;
· Remaining in Australia for nearly seven years without permission and without notifying the Respondent of his presence;
· Working without permission whilst in Australia illegally;
· Applying for a Permanent Residence status on the basis of a false representation;
· Conviction and sentence for breach of the Act;
· Conviction and sentence for assault occasioning actual bodily harm;
· Conduct whilst in detention including the altercation and hitting of another detainee on the eye, which resulted in the Applicant's removal to the Remand Centre;
· The Applicant's hunger strike and threat of hunger strike;
· Making application after application for a Bridging Visa, this in the face of the previous refusals.
The Applicant sought to adduce evidence as to the circumstances associated with his convictions and sentence. Mr Cho also sought, as a result of enquires made by him, to adduce evidence relevant to such circumstances. It is not competent for the Tribunal to go behind the convictions. The Tribunal is to accept the fact of the nature of the offences, the Applicant having been convicted and sentenced.
The Respondent contends that the course of conduct pursued by the Applicant should be seen as following on from his illegal entry into Australia and in order to prevent his removal from this country in circumstances where he has no prospect of being granted a substantive basis to remain here. It is further submitted that the Applicant has manipulated the review process and the Respondent's non-removal policy.
Each of these submissions has merit. Whilst a non-citizen or non-resident has every right to utilise the legal process in pursuit of a lawful end, a course of conduct pursued without merit is what might in another context be regarded as vexatious. The review process has been manipulated by the Applicant. Rarely has the Tribunal experienced a case of so many applications being made to the same end and so many appeals made similarly without merit.
As has been already noted there is a petition before the Tribunal signed by many of the persons detained with the Applicant at the Detention Centre seeking the removal of the Applicant from detention (Exhibit B). The petition has been signed by persons who, on the basis of evidence before the Tribunal, have no awareness of the relevant circumstances.
The Applicant says that he has changed. But his conduct in detention is not indicative of this. He has engaged in improper conduct resulting in his removal to the Remand Centre. He has incited other detainees to sign a petition. He has threatened to go on a hunger strike. He has entered upon a hunger strike. Messrs Kim and Cho have given evidence as to their assessment of the Applicant but each of these gentlemen base their support on a misconception as to the circumstances leading to the transfer to the Remand Centre and a lack of appreciation of the monitoring that took place as a consequence of directions given.
The Tribunal is of the opinion on the basis of the whole of the evidence before it that the Applicant is not within the meaning of the Act "of good character".
exercise of discretionAs already indicated Direction No 21 details the factors considered relevant to an assessment of the level of risk to the Australian community of allowing a non-citizen to enter or remain in this country. They include the seriousness and nature of an Applicant 's conduct, the likelihood that such conduct may be repeated, and the issue of general deterrence.
The offences for which the Applicant was imprisoned in Australia, being breach of the Act and assault occasioning actual bodily harm, are "serious" within the meaning of the Direction. The Respondent maintains that the Applicant has exhibited a propensity for violence and that this represents a potential danger to the community. The conduct of the Applicant over a lengthy period of time, commencing whilst he was resident in South Korea and extending to his time in the Detention Centre, are confirmatory of this submission. Whilst the Applicant maintains that he has changed, the same is not apparent from the evidence tendered. The risk of the Applicant repeating earlier conduct is relatively high, and has been a significant factor in the relevant assessment.
The conduct of the Applicant is known to detainees at the Detention Centre and should be known to those members of the South Korean community who have read the earlier mentioned article. Refusal of a visa to the Applicant would become known to these people and may well discourage others from engaging in conduct of a nature similar to that practiced by the Applicant. The Respondent submits that the expectation of the Australian community would be to the effect that a visa should be refused to the Applicant when it would enable him to be released from immigration detention pending his removal from Australia. There is clearly a risk that the Applicant would engage in activities the like of those in which he has previously been involved. The means by which he came to be in Australia, the conviction for making a false declaration, the breach of conditions imposed with the grant of Bridging Visas during the currency of his Ministerial application and "continuing attempts to keep himself in Australia by all means" lead to a lack of certainty with respect to the Applicant making himself available for removal when required or abiding by any conditions which might be imposed on the granting of a Bridging Visa.
The Applicant on the evidence does not have any relevant children whose interests would be affected by the refusal of a visa.
As to other considerations, the Applicant has no ties to Australia other then that evidenced by the references provided by the above mentioned witnesses and his contacts at the Detention Centre. There was not any evidence of the Applicant having made or being able to make a significant contribution to the Australian community.
It was said on behalf of the Respondent that "there is no realistic prospect that the Applicant can obtain a substantive visa to remain in Australia and it is highly likely he would abscond if released". The Respondent further maintains that even be it that the Applicant has been detained "for an extraordinary long period this has been entirely due to his own conduct". The Tribunal agrees with the latter submission. The period for which he has been in detention and the reasons for detention are consequential on the Applicant's own conduct.
The Tribunal makes no comment on the prospect of a substantive visa being granted to the Applicant. If such an application were to be made it would no doubt be determined on the circumstances as they are then apparent.
The Tribunal is, having considered the factors relevant to the exercise of its discretion as detailed in the Minister's Direction, not satisfied that such discretion should be exercised in favour of the Applicant.
For the reasons herein before set forth the decision under review is affirmed.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: L Bonouvrie
AssociateDate/s of Hearing 5 December 2002
Date of Decision 20 December 2002
Solicitor for the Applicant Self-represented
Solicitor for the Respondent Mr Greg Peek
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