Woo and Minister for Immigration and Multicultural Affairs
[2006] AATA 271
•24 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 271
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2005/1264
GENERAL ADMINISTRATIVE DIVISION )Re JANA WOO
Applicant
ReMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis AM Q.C., Deputy President Date24 March 2006
PlaceSydney
Decision The decision under review is set aside and the application remitted to the Respondent for further consideration in accordance with these reasons for decision. [SGD] The Hon R N J Purvis AM Q.C.
Deputy President
CATCHWORDS
MIGRATION – refusal to grant subclass 143 (contributory parent) visa – Applicant made false representation in visa application – overstayed visa – worked without consent – Applicant a person not of good character – discretion considered – hardship suffered – acts that need to be deterred – expectations of the Australian community – decision set aside
Migration Act 1958 – ss. 234 and 501
REASONS FOR DECISION
24 March 2006 The Hon R N J Purvis, AM Q.C., Deputy President THE APPLICATION
1. Ms Jana Woo by her application of 4 October 2005 seeks a review by the Tribunal of the decision made by a delegate of the Minister for Immigration and Multicultural Affairs (“the Respondent”) on 14 September 2005. By such decision the Respondent refused to grant a sub-class 143 (contributory parent) visa to Mr Kun Woo, the father of Jana Woo, pursuant to section 501(1) of the Migration Act 1958 (“the Act”) on the ground that he did not pass the character test.
2. In the reasons for arriving at the refusal decision the Respondent, inter alia, stated:
“…
4. On 20 January 1986 Mr Woo was granted a further Temporary Entry Permit, permitting a stay in Australia until 22 April 1986. Mr Woo remained in Australia after his Entry Permit ceased as an illegal entrant.
…
57. I note Mr Woo disregarded Immigration Law by being in Australia unlawfully for a period of approximately 3 years and 9 months. I further note that after becoming an illegal entrant he was joined by his wife and children in Australia, who also subsequently remained unlawfully.
58. I also note that Mr Woo worked in Australia without permission by operating a cleaning business, and that on the advice of his immigration advisor misleadingly advised the department in a visa application that he was separated from his spouse.
…
63. I took into account Mr Woo’s explanation that he remained unlawfully in Australia because of a lack of knowledge of immigration procedures, because he had family in Australia and because over time his children became accustomed to life in Australia. I also took into account Mr Woo’s explanation that he mislead the department on his marital status after following incorrect advice from an advisor, and that he worked unlawfully in order to support his family.
64. I note Mr Woo entered Australia in 1986 and had already been residing in Australia unlawfully for 4 months prior to the arrival of his family. Mr Woo was aware of the requirement to hold a valid Entry Permit, and extended his initial Entry Permit on 20 January 1986. As a result, I find that prior to his family’s arrival in Australia Mr Woo decided to remain permanently in Australia, initially by unlawful means.
65. The nature of Mr Woo’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.
…
66. I considered the nature of Mr Woo’s conduct and the reasons stated as causing his unlawful stay in Australia. Mr Woo was aware of the requirement to hold a valid visa while in Australia and appears to have made a conscious decision to breach immigration law and remain unlawfully for a considerable period of time.
67. I took into account Mr Woo’s claim that since 1991 he has ensured that he maintained lawful status in Australia.
68. Given the extent of Mr Woo’s general conduct I find that there is a significant chance that Mr Woo might conduct himself in a dishonest manner or breach Australian law again. I therefore placed moderate weight on his risk of recidivism.
…
69. In considering whether a decision to refuse to grant a visa to Mr Woo 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. Granting a permanent visa to Mr Woo would effectively condone immigration malpractice in the eyes of non‑citizens, being tantamount to rewarding him for his past conduct. However I considered that this was not a significant factor and overall I placed little weight on this consideration.
…
71. I gave considerable weight to the nature of Mr Woo’s conduct. His conduct has involved a disregard for Australia’s immigration law and the community’s expectation that persons wishing to enter this country will maintain compliance with immigration law.
72. In view of the nature of Mr Woo’s conduct, I believe that the Australian community would expect Mr Woo’s visa application to be refused. I gave considerable weight to this consideration.”
THE ISSUES FOR DETERMINATION
3. On behalf of the Applicant Mr Levingston admitted for the purpose of the proceedings that Mr Woo, within the meaning of section 501(6) of the Act, was not a person of good character. The admission was made having regard to the general conduct of Mr Woo, namely:
·On 20 January 1986 Mr Woo was granted a temporary entry permit valid until 22 April 1986. Mr Woo remained in Australia without permission after the expiration of the temporary entry permit until 9 February 1990.
·Whilst in Australia from January 1986 – June 2003 Mr Woo established a business and worked without permission.
·On 7 April 1993 Mr Woo lodged an application for a permanent entry permit in which he made a false and misleading statement, namely that he had separated from his wife in November 1992 this in order to improve his chance of being granted a visa to remain in Australia.
4. On the basis of the evidence before the Tribunal the admission was properly made and is accepted.
5. The issue remaining for determination is whether the Tribunal should exercise its discretion to refuse the application for a contributory parent (sub-class 143) visa pursuant to section 501(1) of the Act.
THE HEARING
6. At the hearing of the application the Applicant was represented by Mr Christopher Levingston, solicitor, and the Respondent by Mr Avinesh Chand, solicitor of Clayton Utz Lawyers.
7. The documents lodged by the Respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T54. Documentary material tendered on behalf of the Applicant was also admitted and marked accordingly:
Exhibit No.
Description of Exhibit
Date
A
Statement of Jana Woo
7 March 2006
B
Statement of Hanna Woo
17 March 2006
8. The Applicant and her sister Ms Hanna Woo gave written and oral evidence upon which they were each cross examined.
CHRONOLOGY
9. On behalf of the Respondent a chronology of relevant events was prepared and placed before the Tribunal. Mr Levingston on behalf of the Applicant accepted the accuracy of the chronology. Subject to some minor alterations and additions the relevant events are noted as follows:
DATE
EVENT
1985 - 22 December
Mr Woo arrived in Australia on a visitor’s visa.
1986 - 20 January
Mr Woo granted a temporary entry permit valid to 22 April 1986.
1986 - 1 September
Mr Woo’s wife and their 2 children arrive in Australia on visitor visas. They are granted a temporary entry permit valid to 28 September 1986.
1990 – 9 February
Mr Woo applied for an extended entry permanent entry permit.
1991 – 8 July
Mr Woo applied for a (temporary) entry permit.
1992 – 31 March
(Temporary) entry permit refused.
1993 – 7 April
Mr Woo applied for a (permanent) entry permit on the basis that he is a last remaining relative.
1993 – 1 May
Application for permanent entry permit refused.
1993 - 22 June
Mr Woo applied for refugee status.
1993 – 25 November
Application for refugee status refused.
1994 – 28 July
Mr Woo applied for a special (permanent) entry permit.
1994 – 16 August
Mr Woo’s eldest daughter, Ms Jana Woo, granted a permanent entry permit.
1995 – 6 February
Refugee Review Tribunal affirms the refusal decision.
1995 – 2 June
Special (permanent) entry permit application refused.
1996 – 31 May
Migration Review Tribunal refuses application for temporary entry permit.
1996 – 29 August
Ms Hanna Woo granted Certain Unlawful Non-Citizens visa.
1997 – 11 September
Mr Woo requested Ministerial intervention referable to refugee status application.
1999 – 25 March
Minister declines to intervene.
1998/1999
Mr Woo joins ROSCO and Lie class action.
2003 – 10 June
Mr Woo and his wife granted a bridging visa.
2003 – 25 June
Mr Woo and his wife depart Australia.
2003 – 27 June
Mr Woo lodges application for sub-class 143 (contributory parent) visa.
2005 – 14 September
Minister’s delegate refuses Mr Woo’s sub-class 143 visa application.
RELEVANT LEGISLATIVE AND DIRECTION 21 PROVISIONS
10. Section 501 of the Act relevantly provides:
“(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)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
…
Otherwise the person passes the character test.”
11. If the Tribunal finds that an applicant does not pass the character test the discretion in section 501(1) of the Act is enlivened. In exercising the discretion Ministerial Direction 21 (“the Direction”) must be followed and applied.
12. In the preamble to the Direction it is stated:
“… In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it…”
13. Provisions of the Direction that are relevant to this application are:
“1.9 In considering whether a non-citizen is not of good character against sub-paragraph 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:
(a) Whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
…
·Involvement in activities such as… breaches of immigration law; or
…
(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.
…
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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
…
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).
...
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) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…
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 RELEVANT FACTS AND FINDING OF FACTS
14. Mr Woo arrived in Australia on a temporary entry permit in or about January 1986. It was valid to 22 April 1986. He remained in Australia without permission until 9 February 1990. Thereafter, by reason of the currency of visa applications, appeals or ministerial requests and the granting of bridging visas, he remained until he departed with his wife on 25 June 2003.
15. The Applicant, her mother and her sister, arrived in Australia on 1 September 1986. They joined their father. Thereafter, Mr Woo at first obtained employment and then with his wife, established a cleaning business in order to support the family. The daughters were settled into school. As the Applicant states (Exhibit A) “they [her parents] gave everything up to give me and my sister a better life”. The girls were not aware of their parent’s visa status until they were each about 17 years of age.
16. As indicated in the above chronology, Mr Woo made numerous applications for a number of different kinds of entry permits or visas between February 1990 and his departure. He sought migration advice from solicitors. As the Applicant again states “every application submitted was not successful, this did not deter us applying again and again”. Mr Woo appealed to the Migration Review Tribunal, to the Refugee Review Tribunal and made application for ministerial intervention. He joined, on legal advice, a class action.
17. In February 1990, Mr Woo applied for an extended eligibility temporary entry permit in which, amongst other information, he detailed his employment history in Australia between April 1986 and December 1987 and his having been self employed as a cleaner since April 1988. He also stated in a statutory declaration, forming part of his application (T5/57):
“…
1.I became an illegal entrant on the 19th December 1989 by virtue of the prior enactment and commencement on that date of the Migration and Legislative Amendment Act 1989.
2.I was a prohibited non-citizen in terms of the Migration Act 1958 prior to the June 1989 Amendment Act, and greatly regret that I acquired this status as a result of my visa expiring whilst I remained in Australia.
3.I rely on the following factors as compelling reasons for my application being approved:
(a)The total of my family which consists of my mother, and two sisters are Australian Citizens.
…
(d)I overstayed my visa which I am truly regretful.
…”
18. On 7 April 1993, Mr Woo applied for a (permanent) entry permit on the basis that he was a last remaining relative. In the application he stated his occupation as “cleaning, self employed from 1988 to present”. However, with reference to whether he had been previously married, he stated in the affirmative declaring marriage between 19 June 1976 and 3 November 1992 and that he and his wife were then separated. This was not true, even be it, according to Miss Hanna Woo, that at that time her parents were “fighting all the time and there was a period of 2 weeks when my mum moved out temporarily. I remember they were fighting all the time”.
19. This latter application was refused in May 1993 and in the following month Mr Woo applied for refugee status. In his application he noted that his Korean passport had expired. He acknowledged his wife being with him in Australia as were the two daughters. He stated his occupation as self employed cleaning contractor “1988 ‑ present”. The application was refused at first instance, on appeal to the Refugee Review Tribunal and by the Minister. This process took nearly 6 years.
20. In 1997 the Applicant was granted Australian citizenship, her sister being also so granted in 1998. In 1997 both daughters were enrolled at Sydney University.
21. When asked why he stayed illegally in Australia, Mr Woo stated in a document dated 13 May 2005 (T51/503):
“My mother and all my families were in Australia. As there were none of my families in Korea, I didn’t want to leave Australia. Also, my two daughters so much liked Australia and enjoyed their school life. They received awards very often and didn’t like to leave Australia. I also wanted them to live in Australia. I tried to find any possible legal way to stay in Australia but everything was difficult as I already became an illegal stayer. Furthermore, it was difficult for me to leave my mother in old age.
…
I apologise for having run a cleaning company during my illegal stay. I just thought I had to survive and support my two daughters. I spent all the money a brought from Korea, and I couldn’t get any social security benefits here such as medical insurance, which made me more difficult to live. So, I worked very hard for cleaning work. I also paid taxes diligently. I had to do cleaning work for my families.”
CHARACTER
22. The Respondent maintains that Mr Woo acted in contempt of and in disregard of Australian migration law. He provided a bogus document and made false and misleading statements. He remained and worked in Australia without permission.
23. As already indicated in these reasons and on behalf of the Applicant, Mr Levingston did not put at issue the facts relied on by the Respondent as constituting not good character. The misconduct was at the time serious. Overstaying a visa is reprehensible but not very serious in the context of other matters specified in paragraph 2.6 of the Direction. Likewise, it was maintained, as far as working without permission is concerned. Mr Levingston does however, concede that the misrepresentations contained in the visa application of 7 April 1993 as to marital status were very serious in terms of that paragraph. They were made with intent to deceive the Respondent.
24. The Tribunal accepts the admission. However, the circumstances of the misrepresentation in 1993 and the passing of the years since that happening are of relevance when weighing up the discretionary considerations.
HARDSHIP
25. Both the Applicant and her sister say that even be they now adults, they miss their parents. They say that with Mr Woo’s mother and relatives living in Australia, they need their parents to complete the family. Miss Hanna Woo is engaged to marry but has deferred the ceremony in the absence of her parents.
26. Mr Woo and his wife are living in South Korea. According to the Applicant they are “suffering emotional and physically” (Exhibit A). Mr Woo has not been able to obtain work since returning to Korea. His wife is working as a maid and supporting them both. They are living in rented accommodation. If they came to Australia they would live as before with the Applicant and continue their sub-contract cleaning activity.
EXERCISE OF DISCRETION
27. The Respondent made mention of section 234(1) of the Act which provides for a term of imprisonment or penalty to be imposed where a person makes a false representation in connection with entry or proposed entry into Australia. The misrepresentation by Mr Woo, it is maintained, was serious. It is contended that Mr Woo made the false and misleading statement in his permanent entry permit application in order to improve his chances of obtaining permission to remain in Australia. This conduct, it is said, was serious. He remained and worked in Australia without permission and this should also be looked upon as serious misconduct. Further, it is contended, there is a likelihood that Mr Woo may re-offend in the future given his “repeated disregard of Australian immigration law by remaining in Australia without permission, working in Australia without permission, and making a false and misleading statement in his permanent entry permit application”.
28. If the Tribunal should affirm the decision under review then this, it is submitted, may prevent or discourage similar conduct by like minded persons. The protection of the Australian community requires that the decision to refuse Mr Woo’s visa application be affirmed.
29. The conduct of Mr Woo, the Respondent contends, overall demonstrated disrespect for Australian migration laws, this on more than one occasion. The Australian community expects that residents should abide by Australian laws and that expectation was broken, the Respondent maintains, when Mr Woo breached Australian migration laws.
30. Considerations identified as relevant are the disturbance and hardship that might be caused to Mr Woo’s mother and 4 siblings who are living in Australia, as well as the 2 daughters. Mrs Woo, the wife of Mr Woo is a South Korean citizen and resides with him in South Korea.
31. It is contended on behalf of the Respondent that “there is no evidence of rehabilitation and recent good conduct in relation to Mr Woo”. This is so in the sense that recent good acts and good conduct have not been identified. But neither is there any evidence as to Mr Woo committing any acts of bad conduct since 1993, other than his involvement in the contract cleaning activities. His residence in Australia from that time was further to the Respondent’s assent. That is, assent in the sense that he had been granted permission to remain in Australia pending the determination of various proceedings. It is noted that the visa now sought by Mr Woo is a permanent visa.
32. In his oral submissions, Mr Chand submitted that there was a clear intention on the part of Mr Woo to stay in Australia, this being apparent from his overstaying his visa, his work without express permission and the making of the misleading statement. The conduct of Mr Woo in doing “all possible to remain in Australia” and “hence committing the serious acts of misconduct“ was criticized. Given this motivation, it was said the visa should be refused, this in order to deter such conduct and to not benefit Mr Woo in the long run. His conduct, it is maintained, was calculated and deliberate. There is a likelihood it may well be repeated, he having displayed a disregard of Australian law.
33. On behalf of the Applicant, it was submitted, that the conduct of Mr Woo in working without permission whilst possibly attracting a sanction, was not a serious act against the Act. Further, Mr Woo had made no attempt to hide from the Respondent the fact that he had obtained employment and later was carrying on the activities of a cleaning contractor on a self employed basis. Overstaying the visa, whilst being a breach of trust, and to that extent, reprehensible, was not an offence and did not attract a sanction. Further, Mr Woo made known to the Respondent, from at least 1993 that his passport had expired, as had his visa.
34. Thus, it is said, withholding a visa from Mr Woo is hardly an act in aid of protection of the Australian community. The misleading of the Respondent by not telling the truth as to his marital status occurred thirteen years ago and this act “had been purged by effluxion of time”. It is submitted that the Respondent ignored the fact of Mr Woo overstaying his visa and ignored the fact that he was working, both situations being known to the Respondent, and hence cannot now be relied upon as relevant to protection of the community. I do not accept the latter submission. There is no estoppel operating against the Respondent. However, the submission has some merit in the context of the passage of time and the knowledge obtained by the Respondent, this tending to minimise the seriousness of the breaches. The expectations of the Australian community, it could be said, would not now require a visa to be withheld.
DECISION
35. Whilst the misconduct of Mr Woo in 1993 was serious, it was, as Mr Levingston submits, committed a long time ago. No other unconfessed misconduct has since occurred. Even be it the over stay of the visa and the working without consent were carried on without the express approval of the Respondent, Mr Woo did not attempt to conceal the situation. He was motivated in relation to each transgression in the interests of the daughters, conduct not likely to be repeated. The circumstances are now quite different.
36. There is no present need for concern as to the protection of the Australian community. No issue referable to deterrence now arises. There was no deceit. Mr Woo did not succeed with the relevant application where he misrepresented the truth as to separation from his wife. I do not accept that he has displayed a propensity to mislead nor that there is any act of his that needs to be deterred. He stayed in Australia after his visa expired and then only until the expiration of his further applications. He departed voluntarily when he had exhausted all avenues available to him on‑shore. He disclosed his employment and that he had his own cleaning business. He paid income tax.
37. The Australian community, knowing all the facts, would not expect Mr Woo on these accounts to be deprived of a visa. There is hardship resting on him, his wife, the daughters and possibly his mother and siblings, if a visa be refused.
38. Having due regard to the matters and considerations hereinbefore set forth in these reasons, I am of the opinion that, in the exercise of the statutory discretion, the decision under review should be set aside and the application be remitted to the Respondent for further consideration.
I certify that the 38 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 of Hearing 8 March 2006
Date of Decision 24 March 2006
Solicitor for the Applicant Mr C. LevingstonSolicitor for the Respondent Mr A. Chand
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