XGHJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

XGHJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3474 (28 September 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4658
Re:XGHJ
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:28 September 2021
Place:Brisbane

The Tribunal determines:
(1)pursuant to subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), the publication or other disclosure of the documents set out in Exhibit 5, and the information contained therein, is restricted to:
(a)EYK;

(b)      the Applicant’s legal representatives;
(c)      the Respondent and its legal representatives;
(d)      members and staff of the Tribunal in the course of performing their duties.
(2)The decision under review is affirmed.

.................................[SGD]...........................
Deputy President J Sosso
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class BB Subclass 155 visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No 90 – domestic violence – mental health issues – availability of health care in South Korea – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Bennett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1462
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292
DKXY v Minister for Home Affairs [2019] FCA 495
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Stowers [2020] FCA 407
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050
Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Viljoen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1252
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President J Sosso
28 September 2021
INTRODUCTION

On 1 May 2020 the Federal Court (Gleeson J) set aside the decision of the Tribunal of 23 October 2019 which affirmed a decision of a delegate of the Minister for Home Affairs (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – the Respondent) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the cancellation of XGHJ’s (the Applicant) Class BB Subclass 155 visa and remitted the matter to the Tribunal for reconsideration according to law.
When this matter was first heard by the Tribunal the relevant Direction under s 499 of the Act was Direction No 79. Direction No 79 was revoked on 15 April 2021 upon the commencement of Direction No 90.
The Full Federal Court in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 held that the Tribunal is required to apply the law and any relevant policy in existence at the time of making its decision. In this matter the Tribunal has applied Direction No 90. Further, as the matter was heard after Direction No 90 was published, the parties were not disadvantaged and were able to make submissions and provide evidence having regards to the terms of Direction No 90.
The Applicant was born in South Korea in July 1974 and arrived in Australia on 30 July 1997 when he was 23 years of age – Exhibit 1 G33 p. 150, Exhibit 2 para 4.
The Applicant’s parents are still alive and are, respectively, in their mid 70s and 80s and he also has an older brother – Exhibit 16 p. 4 para 1.
Both of the Applicant’s parents have been long-term members of the Yoido Full Gospel Church. This Church, which is located on Yoi Island in Seoul, is a Pentecostal denomination affiliated with the Assemblies of God. The Applicant’s father was one of the earliest members of the church, and has played a prominent role in the congregation in his role as a Pastor – Exhibit 14 p. 1, Exhibit 16 p. 5 para 2.
It would appear that the Applicant had an unremarkable childhood, growing up in a happy family atmosphere, and having had no difficulty with his schooling. Following secondary school, the Applicant commenced a Bachelor of Electronics – Exhibit 16 p. 5 paras 2-5.
The Applicant was required to perform two years military service while he was living in South Korea. During that service he was posted to a Border Unit which served at the border of South and North Korea and rose to the rank of Squadron Sergeant of a firearm platoon of 28 men. Whilst serving at this time he witnessed the suicide of a friend and fellow soldier which traumatised him. This emotional trauma was compounded in August 1996 by a landslide which engulfed his camp resulting in the death of a number of soldiers – Exhibit 8 paras 3 – 15.
Shortly thereafter (1997), on being discharged, the Applicant sought psychiatric support in Seoul and was diagnosed with post-traumatic stress disorder (PTSD), major depressive disorder (MDD) and alcoholism – Exhibit 8 para 16.
The Tribunal was provided with a translated psychiatrist medical report dated 3 June 1997 – Exhibit 18.3. In that report it is stated that the Applicant had a history of drinking and smoking of more than two years. It was noted that the Applicant “has a history of alcoholism and psychotic symptoms”. It was also observed:
“He states that alcohol ‘the only way to help him resolve all those symptoms without medication ‘indicates mental illness medical support inside the army…
[The Applicant], at 23 years old, young man has been diagnosed with the alcoholism of
·It was high concentration with alcohol in the blood causes symptoms to him:
slowing of reflexes, the gap in the memory, poor decision-making abilities, staying conscious but not having memory of his actions, which called a blackout. A decreased ability to control bodily movements, especially he had risky behaviour, that symptom can happen this.
[The Applicant] is diagnosed with major depressive disorders and alcoholism.
He is under my treatment for the following medications
-Mirtazapine (50 mg)
-Pristiq (150 mg)”
The Applicant did not complete his university studies, and decided instead to travel to Australia – Exhibit 16 p. 5 para 5.
It is not contested that after arriving in Australia, the Applicant has been in continuous employment. The evidence before the Tribunal is that the Applicant has been engaged mostly in manual work, including demolition, cleaning, painting and tiling. For a number of years up to 2009, the Applicant ran his own cleaning business, and from 1 November 2016 worked for Waterpoint Building Management as a cleaner – Exhibit 3 TB1 p. 44, Exhibit 16 p. 5 paras 5 – 6. The Business Operations Manager of Waterpoint Building Management in a character reference of 13 March 2018 stated that the Applicant was “a high achiever in his work ethic, always diligently efficiently completing his duties and following them up with taking on further duties” – Exhibit 1 G26 p. 118.
About ten months after arriving in Australia the Applicant met Ms JYC, who was also born in South Korea but was an Australian citizen – Exhibit 3 TB11 p. 283 para 5. The Applicant and JYC married in Australia in March 1999 and in 2001 returned to South Korea and celebrated their marriage with their respective families – Exhibit 3 TB11 p. 283 para 5, Exhibit 8 para 19, Exhibit 16 p. 7 para 20.
The Applicant and JYC’s only child, Ms YJK, was born in October 2002 – Exhibit 1 G34 p. 151.
The Applicant described JYC as his “dream wife” and “a great wife who has sacrificed everything for our family” – Exhibit 8 paras 19 – 20.
Unfortunately conflicts arose between the Applicant and YJC concerning the monetary support she was providing to her family. According to the Applicant YJC’s “extended family visited us quite often from offshore…to borrow our money mainly.” – Exhibit 8 para 19.
A dispute arose on 3 March 2002 between the Applicant and his wife. At the time of the dispute YJC was eight weeks pregnant. According to the Police Facts Sheet, the Applicant and YJC were at JYC’s brother’s home when a dispute arose over whether they would stay the night there or return to their home. The following account is given in the Police Facts Sheet – Exhibit 3 TB1 pp. 5 – 6:
“The victim did not want to argue in her brother’s home and went outside and got into her car.
The defendant followed the victim outside to her car and grabbed the victim on the arm preventing her from leaving the premises. The defendant grabbed the victims left arm whilst she was then seated in the vehicle saying ‘Jump out of the car, come inside’. The victim and the defendant continued to argue about where to sleep for the next five to ten minutes.
The defendant then grabbed the right arm of the victim and said ‘Come out!’. The defendant then pulled the victim out of the car causing the victim to fall on the ground.
The victim stood up and the defendant then pushed the victim with both hands on her shoulders causing the victim to hit the wall behind her. The victim said ‘What are you doing, how could you do this I am pregnant!’
The defendant then punched the victim with a closed right fist to the left side of her face. The victim attempted to cover up and the defendant again hit the victim in the left eye and nose with a closed right fist. The victim fell onto the ground and screamed.
The victims brother came out from the house and asked what was going on. The defendant again tried to get to the victim however the brother stood between the victim and the defendant. The brother then escorted the defendant from the scene.
The brother and the victim then drove to Concord hospital, the victim was treated for soft tissue bruising and swelling to the bridge of the nose, left eyelid, and upper left and right arms.”
The Applicant was subsequently arrested, however while he denied punching YJC he claimed that he had thrown his wallet and keys in her face.
In her psychological assessment report of 6 November 2020, Ms Delphine Bostock noted that the Applicant informed her that the victim of his assault was his brother-in-law and that he denied that “he had ever been physically violent with intimate partners.” – Exhibit 16 p. 9 para 33.
In a Statutory Declaration of 6 September 2019, the Applicant again denied the version of events outlined in the Police Fact Sheet set out above – Exhibit 3 TB11 p. 286:
“31. The assault charge in 2002 happen when my ex-wife and I were moving to Croydon. My ex brother in law and I started arguing and then we ended up fighting. My wife tried to break it up and got hurt. The argument was about money I didn’t get any legal advice and went to court. I didn’t speak English at that time. This was a stupid fight and I should have known better, I should have walked away.”
On 22 March 2002 an Apprehended Violence Order under the Crimes Act 1900 (NSW) was made against the Applicant for the protection of YJC, which prohibited the Applicant from intimidating, stalking, assaulting, molesting, harassing, threatening or otherwise interfering with her – Exhibit 3 TB1 p. 10. Further, the Applicant was convicted of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 and fined $750– Exhibit 3 TB1 p. 4, TB3 p. 123.
From the evidence presented, this was the first time that the Applicant came to the attention of Police either in Australia or South Korea.
It would appear that the Applicant and YJC continued living together and after their child was born in 2002 they stayed together as a family unit until 2005/2006 when YJC left the family home – Exhibit 8 paras 25 – 26, Exhibit 16 p. 8 para 23. When YJC left the family home she did not take YJK with her, and the Applicant initially took on the role of sole parent looking after YJK and juggling parental responsibilities with working – Exhibit 8 paras 27 – 29. The exact circumstances of the Applicant’s parenting of his daughter are unclear as will be explained below.
The Applicant provided this account of what occurred when his first wife left the family home – Exhibit 3 TB11 p. 284:
“10. My ex-wife moved back to South Korea when we separated. My daughter has family in Australia from her mother’s side but because we got divorced and this is shameful and embarrassing in our culture, they have had no contact or relationship with [YJK]. This is why it’s so hard for single parents in South Korea to survive. Divorce is still taboo.
11. My ex-wife and I got officially divorced in 2009.
12. In or around 2009 I decided that it was important that [YJK] (aged around 8 years old) learnt the Korean culture so I took her to South Korea and left her in the care of my parents and brother. [YJK] was living in Korea for 3 years between 2009 and 2012. She went to school and learned the language. She also got the love and attention of my mum and her grandmother. My mum was a housewife so she looked after [YJK] like her child. During this time [YJK] grew very close to my parents and one brother. She enjoyed her time in Korea.
13. Around 2012 we decided it was time [YJK] came back to Australia…”
Commencing in 2005, the Applicant was charged with a number of traffic related offences.
On 24 October 2005 the Applicant was convicted of drink driving and was fined $800 and disqualified from driving for nine months. The Applicant had an alcohol reading of 0.125 – Exhibit 3 TB1 pp. 13 -15, TB3 p. 123.
The Applicant was next convicted on 25 January 2006 for driving whilst disqualified (on 31 December 2005) and was fined $750 and disqualified from driving for two years - Exhibit 3 TB1 pp. 17 – 18, TB 3 p. 123.
Again, the Applicant continued to drive whilst disqualified and was apprehended on 13 March 2006. He was sentenced at the Burwood Local Court on 3 April 2006 for driving whilst disqualified and fined $1,000 and disqualified for two years – Exhibit 3 TB1 pp. 21 – 22, TB3 p. 124.
Of interest is a Probation and Parole Service Court Duty Officer Report prepared by Ms Cheryl White who interviewed the Applicant prior to his sentencing at the Burwood Local Court. Ms White recounted the following information given to her by the Applicant – Exhibit 3 TB1 p. 24:
“The offender is not previously known to this Service.
At 32 years old, [the Applicant] currently resides in his own premises which he shares with a flat mate. [The Applicant] is presently going through divorce proceedings. He stated that his wife had returned to Korea with his daughter aged five. His daughter is living with his elderly parents. He stated that he is having financial difficulties as he is required to send $2000 per month to Korea for the upkeep of his family along with paying $3100 monthly toward his home and car loan….
It would appear that [the Applicant] has been gainfully employed since his arrival in Australia, initially in the building industry. In 2001 [the Applicant] related that he had commenced his own cleaning business which he currently employs five to six people.
When reflecting on the offence, [the Applicant] agreed with the Police facts, claiming that he had to drive as a requirement of his employment as he is required to bring all the cleaning equipment to various worksites. He stated that he works six to seven days per week and on two of those days none of his employees are capable of driving. When discussing the concept of licence entitlement, the offender offered very little understanding, however he claimed that he would refrain from driving until qualified to do so…”
Unfortunately, the Applicant did not refrain from driving whilst disqualified and was again charged on 24 May 2007 with this offence having been questioned by Police following a random breath test. – Exhibit 3 TB1 pp. 25 – 26.
The Applicant was again interviewed by a Probation and Parole Officer (Ms Lita Medeiros). Ms Medeiros was informed that the Applicant then resided in an apartment with his wife and four year old daughter – Exhibit 3 TB1 p. 28. As the Applicant’s first wife and daughter had, according to Ms White, returned to South Korea the previous year, it is not clear if the information given to Ms Medeiros by the Applicant was accurate. The Applicant did not remarry until 2009 – Exhibit 3 TB1 p. 33.
In that part of the reported headed “Attitude to the Offence”, Ms Medeiros made the following observations – Exhibit 3 TB1 p. 29:
“Despite accepting responsibility for the offence, [the Applicant] made attempts to justify his offending. Namely, he claims that the management of his business relies heavily upon his driving and that at the time of the offence he was on his way home after taking an employee home. It is noted that [the Applicant] has previously verbalised good intentions in relation to addressing his offending. However, ultimately it appears that he could not be troubled with the demands of organising and adhering to alternative arrangements to driving and he has subsequently re-offended with the current offence.”
Subsequently, Ms Medeiros commented – Exhibit 3 TB1 p. 29:
“He presented as co-operative and appeared to acknowledge his criminogenic issues. It appears that his offending has likely resulted from his capriciousness and he appears to otherwise abide by and value a lawful lifestyle.”
On 7 November 2007 at the Burwood Local Court the Applicant was sentenced to six months imprisonment suspended on entering a bond – Exhibit 3 TB3 p. 124.
In October 2009 the Applicant married his second wife, Ms SC. The marriage was not a happy one, with the parties often arguing, specifically about SC’s male English language tutor. On 2 August 2010 the Applicant arrived home intoxicated, and the Police Fact Sheet provides the following account of what occurred – Exhibit 3 TB 1 p. 33:
“The accused was upset and angry because the victim had not answered a number of telephone calls he had made throughout the day. The accused and victim have begun arguing about this. The accused has kicked the victim’s left knee and locked her inside the bedroom of the apartment.
The accused opened the door five minutes later and began throwing the victim’s cosmetics and clothes onto the floor. The accused told the victim to ‘Get out’ and proceeded to take hold of the victim’s hair with his hand and pull her along the ground. The accused has punched the victim to the left side of her head at least five times. The accused’s assault of the victim resulted in a small red mark to the left forehead area and a bruise approximately .5cm diameter on her left hand.
The victim left the unit and called her friend who in turned contacted police…
Police attended…and were met by the accused who was sitting on the ground inside the front door, with the door lock in one hand and a screwdriver in his other hand….”
The Applicant appeared before Magistrate Longley of the Burwood Local Court on 6 August 2010. A conviction for common assault was recorded and the Applicant was directed to enter into a good behaviour bond for two years and to comply with the terms of an Apprehended Violence Order – Exhibit 3 TB1 pp. 35 – 36.
Less than two months later, on 30 September 2010, the Applicant was again charged with driving whilst disqualified. On 2 March 2011 he was sentenced at the Balmain Local Court to perform 150 hours community service and was disqualified from driving for two years commencing on that day – Exhibit 3 TB3 pp. 125 – 126.

The Applicant’s repeated disregard for multiple Court orders that he refrain from driving whilst disqualified continued. On 22 August 2012 he was arrested at Silverwater having initially been interviewed by Police for driving an unregistered motor vehicle. Upon further investigations it was determined that the Applicant was driving whilst disqualified – Exhibit 3 TB1 pp. 41 – 42.
The Probation and Parole Service Court Duty Officer Report of 16 October 2012 provides the following information – Exhibit 3 TB1 p. 44:
“…He said he married in 1999 and divorced in 2006, remaining single since then, but now having the care of his nine year old daughter from the marriage, living with him, in his rented unit.
…he had his own cleaning business…with many employees, but his driving disqualification in 2005, apparently ultimately led to the demise of his business by 2009 as he could not effectively supervise his workers. He said he became bankrupt which only ended in December 2011.
Since July this year…he has been employed as a supervisor for a large suburban shopping centre, working five days and getting to work by public transport…
His ex-wife has remarried and has her own restaurant business but does retain contact with their daughter….if he should face a gaol penalty, his daughter should return to live with his parents in Korea as she has been living with them previously…”
It would appear that the Applicant did not inform the Probation and Parole Officer that he had remarried, let alone that he had been convicted of assaulting his second wife.
On 16 October 2012 Magistrate Farnan sentenced the Applicant to imprisonment for six months, it being suspended on the condition that he enter into a good behaviour bond for six months – Exhibit 3 TB1 pp. 45 – 47, TB3 p. 126 – 127.
The Applicant was again charged with driving whilst disqualified on 19 November 2014, and was sentenced on 18 December 2014 at the Burwood Local Court to 150 hours community service and with a further two year driving disqualification – Exhibit 3 TB1 pp. 49 – 51, TB3 p. 127. The Pre-Sentence Report prepared by a Community Corrections Officer contains the following observations – Exhibit 3 TB1 p. 52:
“[The Applicant] said that he had no excuse for his short-sighted behaviour. He said he had asked friends if they could assist in having his car taken for servicing and to get a blue slip, but when none were able he decided to drive the car himself. He said he regretted this decision and acknowledged that his actions constituted a serious offence.”
In 2015 the Applicant’s third wife (Ms EYK) arrived in Australia from South Korea with her daughter (Ms HBK). It would appear that HBK came to Australia on a student visa and EYK on a guardian visa. The Tribunal was informed that EYK had work limitations under her visa with consequent monetary problems. EYK was initially relying on monetary support provided by her mother – Exhibit 3 TB9 p. 270 para 3, TB11 p. 285 para 20.
HBK and YJK both attended the same high school in Sydney and became friends. HBK would often visit YJK at her home, and met the Applicant. HBK’s first impression of the Applicant was that “he was really nice” and he often cooked for his daughter and HBK and was “very kind and gentle” to YJK – Exhibit 3 TB10 p. 277 para 3.
The Applicant first met EYK in December 2016 and they soon started dating. On 12 April 2017 the Applicant and EYK were married, and EYK and HBK moved into his home – Exhibit 1 G4 p. 20 para 24, G22 p. 106 paras 5- 8, Exhibit 3 TB9 p. 270 para 7.
EYK gave this account of the events after they were married – Exhibit 3 TB9 p. 271:
“8. Our life was good after we got married. A couple months after our wedding I started to notice that [the Applicant] was a heavy drinker. He would mostly drink after work. He would be a totally different person when drunk.”
Police records admitted into evidence disclose that only one month after the wedding, the Applicant and EYK were fighting resulting in Police intervention.
On 16 May 2017 Police investigated a dispute between the Applicant and EYK. It would appear that both parties had been drinking and that an argument arose over the fact that EYK and HBK had eaten all of the left-over food without leaving any for YJK. No charges were laid – Exhibit 3 TB3 p. 143.
Police were again called to the Applicant’s unit on 24 May 2017 following an alcohol fuelled argument between him and his wife over whether their cat should remain inside the unit overnight. Again, no charges were laid, and the Police opined that EYK was the instigator/aggressor of the argument – Exhibit 3 TB3 pp. 142 – 143.
Unfortunately, the pattern of drunken arguments between the Applicant and EYK continued, and culminated in Police intervention on 10 August 2017. EYK provided this account of what occurred – Exhibit 3 TB9 p. 271:
9. On or around 10 August 2017 [the Applicant] and I got into an argument. [HBK] heard us and came to my defence. [HBK] started cursing at [the Applicant] in Korean, and [the Applicant] pushed her. [HBK] called the police and an AVO was ordered against him. [The Applicant] had to move out of our home, but our relationship continued.”
The contemporaneous Police Report of the incident paints a somewhat more violent and traumatic account of what transpired – Exhibit 3 TB 1 pp. 66 – 67:
“About 10.30pm on 9^th August 2017, the victim was in her room. The victim has hears (sic) the argument between her mother and step dad escalate and both were shouting at each other.
The victim has become concerned for the welfare of her mother and has left her bedroom and made her way into the main bedroom where her mother and the accused were arguing. The victim has attempted to intervene in the argument to calm the situation down.
The accused has began screaming at the victim and a verbal argument has ensued for a number of minutes. The victim has then said ‘Fuck you’ to the accused in Korean.
This has enraged the accused who has commenced to push the victim back into the hallway with both hands to the victims chest. The victim has stumbled backwards into a wall where the accused pinned her against a wall with his hands around her chest and neck region causing scratches to the left side of the victims neck…The accused pushed the victim into her own bedroom and onto her bed and held her down.
The victim has attempted to free herself by clawing, scratching and kicking the accused. The victims mother….has began scratching the accused back in an attempt to help the victim. The accused let go of the victim and went back into the main bedroom…
The accused was placed under arrest and cautioned and escorted outside the unit. The accused started yelling and resisted efforts to remove him from the unit resulting in police utilising a knee strike and wrist lock. After a few moments, the accused complied and was removed from the unit and out to the police caged truck.”
An Apprehended Domestic Violence Order (ADVO) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) was made on 17 August 2017. Pursuant to this Order, the Applicant was prohibited from approaching or contacting HBK or going within 100 metres of where HBK lived or worked. Specifically, the Applicant was prohibited from going within 100 metres of his Croydon unit – Exhibit 3 TB1 pp. 69 – 71.
It would appear that the Applicant, having been prohibited from living at this apartment, resided with a female cousin, Ms BJH – Exhibit 3 TB1 p. 86.
According to the Applicant, on 2 October 2017 (Labour Day), he went to his apartment to see his wife and daughter and pick up some documents. He provided this account of what occurred – Exhibit 3 TB11 pp. 286 – 287 para 33:
“My stepdaughter called the police. Stupidly I had some drinks with friends beforehand after work and then went to the house.”
In another Statutory Declaration, the Applicant expanded on what occurred – Exhibit 1 G22 p. 107 para 17:
“On 2 October 2017, after having a few drinks with my friends after work, I went to see my family but [HBK] at that time may not have had positive feelings towards me. So when she saw me at the house we had a small altercation and she contacted the police again. This led me to stand before the court…”
The contemporaneous Police record of what occurred suggests a much more volatile situation – Exhibit 3 TB3 p. 141:
“On Monday the 2^nd of October 2017, the Accused was in the bedroom of his unit with his wife. The Victim and the Witness were in their bedroom directly opposite. About 9.25pm on Monday the 2^nd of October 2017, the Victim and the Witness could hear yelling coming from within the main bedroom. The Victim and Witness went into their parent’s bedroom and saw the Accused and his wife arguing. At this time the Victim has stepped in between the Accused and her mother. The Accused has said to the Victim ‘Don’t trust your mother’. The Victim has told the Accused ‘Don’t talk to me’, this is when the Accused grabbed the Victim by her hair. The accused pulled the victim’s hair using his left and right hand, pulling her hair above both her ears. The Accused said to the Victim ‘what did you say to me’. The Victim has then started screaming and kicked the Accused in the legs so that he would let go of her hair. A scuffle between all parties has occurred on the bed in the main bedroom. The Witness and her step mother have pulled the Accused off the Victim. The Accused has then grabbed a back pack with his belongings and left the unit.”
In neither of the Statutory Declarations quoted above does the Applicant refer to a further incident which occurred on 26 October 2017 which resulted in him again being arrested after having breached the terms of the ADVO. The Police record of what transpired is set out below – Exhibit 3 TB3 p. 139:
“About 10:00pm on Thursday the 26^th October 2017, Police received a triple zero call to……….in relation to a domestic incident occurring. Police attended shortly after and met the witness and partner of the accused,………….who was pointing to the stairwell in the common area of the building. Police were aware of the accused and his ADVO conditions. Police went to the top level of the unit complex and found the accused hiding in the corner. Police arrested and cautioned the accused in relation to breaching his ADVO. The accused said ‘I know but I want to see me daughter.’ Police could smell a strong scent of intoxicating liquor coming from the breath of the accused. Police then entered the unit and spoke with the aforementioned victim, witness and the accused’ second daughter and witness……………Police ascertained that the accused was in the bedroom with his partner drinking when and (sic) argument occurred between them. Police were contacted after an escalation between the accused and his partner.”
It would appear that the Applicant’s bail was revoked on 27 October 2017 and he was remanded in custody. The Applicant remained in custody until 26 February 2018 – Exhibit 1 G8 p. 47, G22 p. 107 para 17, Exhibit 3 TB3 p. 129.
In a Pre-sentence Report prepared by a Community Corrections Officer, and dated 31 October 2017, the following observations were made about the above incident – Exhibit 3 TB1 pp. 86 – 87:
“[The Applicant] claimed that he was only a social and occasional consumer of alcohol. However, he informed that when he is angry or upset, he drinks alcohol without restraint, becoming even more angry or irritated.
[The Applicant] informed that on the night of his current offence, he shared a bottle of white wine, and glass of beer each, with his wife at a nearby hotel, after which he walked her home….where they continued to drink alcohol in her bedroom, prior to the victim also returning home…
[The Applicant] said that he was fully aware at the time of his offence that he was breaching a recently finalized Apprehended Domestic Violence Order (ADVO) but he wanted to be with his partner…He said he had no good excuse for what he had done.”
The Applicant appeared before the Burwood Local Court on 31 October 2017 and 2 February 2018 in relation to the offences outlined above. Following the revocation of his bail on 27 October 2017, the Applicant remained in custody, and this was taken into account when he was sentenced on 2 February 2018 – Exhibit 1 G7 pp. 43 – 44.
On 31 October 2017 the Applicant was convicted of assault occasioning actual bodily harm and contravening an ADVO. On both counts the Applicant was sentenced to imprisonment for 12 months suspended on entering a bond to attend for counselling, educational development and drug and/or alcohol rehabilitation as supervised by the Burwood Probation and Parole Service –Exhibit 1 G6 pp. 39 – 41, Exhibit 3 TB3 p. 128. When sentencing the Applicant, Magistrate Trad said – Exhibit 1 G6 p. 38:
“I note that you have been bail refused in relation to this matter since 27 October, last Friday. Having regard to the nature of the allegations that see you back before the Court so soon after a s 9 being imposed, it should be very clear to you that a gaol sentence is an option that the Court must be considering. It is a breach, not only of a court order in terms of for the protection of the victim of the offence, the protected person under the AVO, but also a breach of that bond that was imposed by the Court. So both very serious matters and it is a case that under all of the circumstances, having regard to the report that has been prepared, in my view the only option for the Court is a custodial sentence.”
When the Applicant next appeared before Magistrate Trad on 2 February 2018 for contravening an ADVO he was sentenced to four months imprisonment commencing 27 October 2017 and concluding on 26 February 2018 – Exhibit 1 G5 p. 36.
When sentencing the Applicant, Magistrate Trad again made it clear the ramifications he would face should he continue with his unlawful behaviour – Exhibit 1 G7 p. 44:
“ACCUSED: Actually the - my stepdaughter and my wife has got – only experience that Australian life is only three years. They can't speak English very well, even I just teach the call to the police to report the whole thing. I let them know but a problem is they never imagine just contact to the police make a result like this so –
HER HONOUR: But really that they don't think that - that they don't know that the consequences of reporting--
ACCUSED: Yes.
HER HONOUR:--your conduct is not really a matter for me to be concerned about because clearly you are the one who is under the obligation to behave in a certain way because of the AVO.
ACCUSED: Yeah
HER HONOUR: So it was your obligation not to commit the offence to which you have pleaded guilty to.
ACCUSED: Yeah, I understand about that, yeah. So if I change I make sure I never just got the same behaviour like this.
HER HONOUR: I take that into consideration because, quite frankly, if the conduct is repeated in the future, you have already received a custodial sentence because you are under a suspended sentence, today I am going to impose a custodial sentence to take into consideration the period of time you have already been in custody but it is also to reflect the offending that occurred to prior to and the fact that you were on bail subject to allegations of assault occasioning actual bodily harm prior to it. And this is a contravene AVO with violence, and so the Court must take that into account and impose a custodial sentence…
But I do warn you very clearly – if you continue to offend in this way the custodial sentences will get longer. Do not forget that since this offence you are now subject to a 12 month suspended gaol sentence, so if you commit any offences after you are released and you commit any offences at all that bring you back before the Court you will then be in breach of that s 12, that is a 12 month gaol sentence, and you could spend up to that full period of time in goal. So you must be very mindful of your conduct when you leave custody…”
On 19 February 2018 a delegate of the Respondent cancelled the Applicant’s Class BB Subclass 155 Five Year Resident Return visa under s 501(3A) of the Act on the basis that he had a substantial criminal record. The delegate referred to the Applicant’s 31 October 2017 conviction for contravening an ADVO and his sentence of 12 months imprisonment. Reference was also made to the fact that at that time the Applicant was serving a sentence of imprisonment and to his conviction of 2 February 2018 – Exhibit 1 G12 pp. 62 – 65.
The Applicant was also informed of his right to make representations for the revocation of the cancellation decision – Exhibit 1 G12 pp. 63 – 65.
Immediately after being released from prison the Applicant was placed in immigration detention. The Applicant remained at the Villawood Immigration Detention Centre until July 2018 – Exhibit 1 G8 p. 47.
The Applicant duly made representations for revocation of the cancellation decision. He stated that if he was deported from Australia his family would be scattered. His wife did not have the capacity to support the family and would be forced to return to South Korea. His daughter and step-daughter would find it difficult to integrate back into Korean society and would be educationally disadvantaged. Further, if they remained in Australia, they would be alone and without parental guidance and support. The Applicant also claimed that his stepdaughter was shocked about the ramifications of her calling the Police and she was sorry. In conclusion, the Applicant made these representations – Exhibit 1 G20 p. 92:
“I also know that my actions were wrong and I regret that I didn’t seek legal advice when this first happened. I wasn’t aware of the seriousness of an AVO and nor was my step-daughter and the rest of my family.
I am truly sorry for my family and I promise that I will never do the same thing again and will work on my rehabilitation in relation to my alcohol problem. Please let our family be together and please give us another chance to be happy.”
Attached to the application was a Personal Circumstances Form. In response to the Question: “What do you think is the likelihood that you may re-offend now?” the Applicant provided the following response – Exhibit 1 G21 pp. 102 – 103:
“I can assure you that I will never re-offend. I do not want my family to go through this experience again. I know that I have several offences in my criminal records which are mostly related to driving offences. I operated a cleaning business as a sole trader for close to 13 years, from around 2003 to 2016, and my livelihood heavily depended on driving. However, I was young and reckless so I sometimes would drink with colleagues or friends to ‘release’ my stress and loneliness as a single parent. At that time, I thought that I had no choice but to drive or else I would not be able to maintain my business. Now, however, I know that this is not the right attitude. I now take ownership of the offences I committed and recognise that I should have either not drunk before driving, or decided to sacrifice my business if I wanted to drink. As my records show, I do not have any driving offences since then, which shows that I am not a threat to the community, that I respect the law and that I have changed.”
In addition the Applicant provided a Statutory Declaration together with supportive Statutory Declarations from EYK and HBK as well supportive statements from YJK, his employer and Mr Kwang-Kook Kim – Exhibit 1 G22 – 27 pp. 106 – 120.
On 25 July 2018, after considering the Applicant’s response a delegate of the Respondent determined to revoke the original decision to cancel his visa – Exhibit 1 G13 pp. 68 – 69.
Less than two months after his release from immigration detention, the Applicant again came to the attention of New South Wales Police.
According to EYK, 20 September 2018 was Korean Thanksgiving (Chuseok), which is a big celebration in South Korea and an occasion when time is spent with family. On that day EYK cooked Chuseok dishes and asked the Applicant to join her for dinner. She did so, knowing that this was in breach of the ADVO. The Applicant was hesitant to come home, but ultimately agreed. He arrived at 8:00pm. At the time HBK was not in the apartment, but later came home and realised that the Applicant was in the apartment. According to EYK as soon as HBK heard the Applicant’s voice she called the Police and he was then arrested. – Exhibit 3 TB9 p. 271 para 11.

This version of events is somewhat at odds with the Police report of what transpired.
At approximately 10:30 pm on Thursday 20 September 2018 New South Wales Police attended at the residence of EYK and HBK after receiving information that the Applicant was at the premises in a drunken state arguing with EYK. The Police account of what transpired is set out below – Exhibit 3 TB3 p. 137:
“…About 10:30 pm on Thursday 20^th September 2018, Police attended……….after receiving information the accused was at the address, intoxicated and arguing with his ex-wife who resides at the address. Police were invited into the unit by…….., who told Police the accused was in the bedroom and there was a current Apprehended Violence Order in place that he was not allowed to be at the address. INDICMENT 1. CONTRAVENE RESTRICITON IN AVO (DOMESTIC) Police entered the bedroom and observed the accused standing in the bedroom, in breach of his current orders. Police observed the accused was unsteady on his feet, his balance was well affected and there was a strong smell of intoxicating liquor, Police formed the opinion the accused was well affected by intoxicating liquor. Police introduced themselves to the accused and informed him he was under arrest for breaching the AVO. INDICTMENT 2/3: RESIST/ASSAULT POLICE OFFICER IN EXECUTION OF DUTY Police told the accused to turn around which he complied. Police began to search the accused and remove property from his person and place it on the bed. Whilst Police were searching the accused, he screamed loudly and turned around quickly then pushed…….in the chest. Police have reacted to this by utilising an approved ‘check-drill’ striking the accused in the upper chest, which has knocked the accused onto the bed. Police have moved in to attempt to restrain the accused, whilst moving towards him, the accused violently kicked at……striking him in the chin, feeling immediate pain. The accused began to scream and yell towards Police, fearing further violent confrontation Police removed their Oleo-resin Capsicum (O.C.) Spray and yelled at the accused ‘stop all you’ll be sprayed.’ The accused kicked towards Police again and attempted to stand up. It was at this point, Police delivered a short burst of O.C. spray, which struck the accused in the face, taking immediate effect. Police moved in a took a hold of the accused, the accused began to violently resist Police efforts to restrain him by trying to punch and kick Police whilst he continued to scream and yell in another language. The accused was taken to the ground and continued to violently resist Police efforts to restrain him. Police were required to utilise a number of approved knee and hammer fist strikes. Police required the assistance of four (4) officers in total to eventually gain control of the accused when he was hand-cuffed to the rear….”
On 20 September 2018 at the Burwood Local Court, the Applicant pleaded guilty to three charges:
(e)Contravening an ADVO;
(f)Assaulting a Police Officer in execution of duty; and
(g)Resisting a Police Officer in execution of duty.
With respect to the first charge, the Applicant was sentenced to imprisonment for 12 months commencing on 20 September 2018 with a non-parole period of four months – Exhibit 3 TB3 p. 131.
With respect to the remaining two charges, the Applicant was sentenced to a Conditional Release Order which required supervision for 24 months commencing 28 September 2018 and concluding on 27 September 2020 – Exhibit 3 TB3 p. 131.
On 23 October 2018, a delegate of the Respondent again cancelled the Applicant’s visa pursuant to s 501CA of the Act – Exhibit 1 G14 pp. 71 – 74. The Applicant requested a revocation of the visa cancellation – Exhibit 3 G31 pp. 132 – 133.
On 31 July 2019 a delegate of the Respondent decided, pursuant to s 501CA(4) of the Act, not to revoke the original cancellation decision – Exhibit 1 G2, 3 and 4, pp. 10 – 33.
THE LAW
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act, which provides:
“(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied;
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
The starting point when considering s 501CA(4) is whether an applicant has made representations in accordance with the invitation given – s 501CA(4)(a). It is not disputed in this matter that the Applicant has made the requisite representations.
It will be noted that the word “may” is used at the outset in s 501CA(4). The implications of the use of the word “may” were considered by the Full Federal Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151 where the following observation was made (at [21]):
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view….”
Accordingly, there are two issues to be determined by the Tribunal:
(a)whether the Applicant passes the character test as defined by s 501 of the Act; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, then the cancellation of the Applicant’s visa must be revoked – Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 (Marzano) at [31] per Collier J.
Further, the “reason” in s 501CA(4)(b)(i) is not any reason but rather the determinative reason for revocation arrived at after a balancing exercise. Her Honour Collier J made the following observations in Marzano (at [32]):
“In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38] – [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds ‘any’ reason why the cancellation decision ‘could’ be revoked. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case…”
(emphasis in the original)
THE CHARACTER TEST
Section 501 of the Act empowers the Minister to both refuse to grant a visa and also to cancel a visa already granted to a person, if the Minister forms the opinion that the person does not pass the character test.
In turn, the character test is defined in s 501(6). Importantly, a person does not pass the character test if “the person has a substantial criminal record” – s 501(6)(a). A “substantial criminal record” is defined by s 501(7) and includes:
“(c) the person has been sentenced to a term of imprisonment of 12 months or more…”
As Tamberlin J observed in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 (Djalic) at [68]/310:
“The authorities recognise that the protection of the Australian community lies at the heart of the discretionary power to cancel the visa of, or deport a non-citizen convicted of serious criminal offences.”
In the earlier Full Federal Court decision of Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 Lander J quoted with apparent approval part of Ministerial Direction 21. Lander J’s reasoning was agreed to by both Carr and Sundberg JJ. As Tamberlin J observed in Djalic ([71]/310) this suggested that their Honours “considered that the Direction accurately (or at least not inaccurately) summarises both the general object of the legislation and the principal purpose of the power to cancel a visa conferred by s 501.” Lander J observed (at [104]):
“In Direction No 21 the Minister says:
‘The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. 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. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.
…
2. The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter into or to remain in the community.”
After quoting the above extract from Direction 21, Lander J then observed:
“105 The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
106 Where the applicant has failed to pass the character test because the applicant has a substantial criminal record (as in this case), the seriousness of the offences; the circumstances of the offences for which convictions have been recorded; any mitigating facts or circumstances relating to the convictions; the degree of remorse or contrition of the applicant; the sentencing remarks of the sentencing court; the applicant’s history before and after the convictions; the applicant’s personal circumstances; the effect of an order under s 501 on the applicant’s dependents and his family; the prospect of the applicant’s rehabilitation; and the chances of the applicant committing further offences would usually be relevant factors to which the Minister would have regard.
107 In short, any matter that would move the Minister to allow a person of proven bad character (as it defined in the Act) to travel to or remain in Australia, notwithstanding that proven bad character, would be relevant to a decision by the Minister.”
THE HEARING
A Hearing was convened in Brisbane on 28 April and 6 May 2021 and evidence and submissions were received, due to social distancing requirements as a result of the COVID‑19 pandemic, remotely by means of Microsoft Teams.
The Applicant was represented by Mr Berg and Ms Hart and the Respondent by Mr Cunynghame. The Tribunal notes that Mr Cunynghame is referred to as “Mr Cunningham” in the transcript of this Hearing. When quoting from the transcript, Mr Cunynghame will be referred to as “Cunningham”.
The Applicant, who has been in immigration detention since his release from prison in January 2019, appeared via Microsoft Teams throughout the two day Hearing.
Apart from the Applicant, the Tribunal received testimony on 6 May 2021 from EYK and HBK.
During the course of the Hearing I asked Mr Berg if he wanted the Tribunal to use an acronym for the Applicant and for his wife, daughter and stepdaughter. Mr Berg responded positively to this suggestion (Transcript (Tr.) 6.5.2021 p. 117). Although the Tribunal has not received a formal written application for not publishing the Applicant’s name, on 24 September 2021, I directed, pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), that the name of the Applicant be replaced with the pseudonym XGHJ. Further, if any other person’s name might lead to the identification of the Applicant and his immediate family, the Tribunal has also used pseudonyms.
Leave was given to the parties to provide written closing submissions after the close of the Hearing.
The Applicant provided closing submissions (ACS) on 31 May 2021 and a closing reply (AR) on 1 July 2021. The Respondent provided closing submissions (RCS) on 11 June 2021.
On 4 October 2019 Deputy President Constance directed, pursuant to s 35(3) of the AAT Act, that the publication or other disclosure of certain confidential information regarding EYK not be published. This material was admitted into evidence as Exhibit 5, subject to the suppression direction of Deputy President Constance.
At the close of the Hearing I gave the parties the opportunity to make submissions on the question of whether the confidentiality direction of Deputy President Constance should remain or be replaced for the purposes of the disposition of this matter.
Unfortunately, the Tribunal did not receive any submissions from the Applicant, however the Respondent did agree that the confidential information regarding EYK should not be published – RCS paras 30 – 31.
The Tribunal agrees with the Respondent that the confidential information should not be published. Further, the Tribunal has not had regard to that information which is included in Exhibit 5. Whilst a further Direction duplicating the one made by Deputy President Constance is not considered necessary, to put this issue to rest, the Tribunal directs that the documentation contained in Exhibit 5 not be published, and the information contained therein is limited to the persons identified in the Direction.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As discussed above, a person will not pass the character test if they have a “substantial criminal record” which term is defined to include the circumstance where a person has been sentenced to a term of imprisonment of 12 months or more – s 501(7)(c).
It is not disputed that the Applicant was convicted on 31 October 2017 at the Burwood Local Court of both assault occasioning actual bodily harm and the contravention of a prohibition/restriction in an ADVO. On both counts the Applicant was sentenced to imprisonment for 12 months – Exhibit 1 G5 p. 36.
It is also not disputed that on 2 February 2018 the Applicant was sentenced to a term of imprisonment for contravention of an ADVO – Exhibit 1 G5 p. 36.
It is also not disputed that on 28 September 2018 the Applicant was convicted of contravention of a prohibition/restriction in an ADVO and resisting and assaulting Police. The Applicant was sentenced to a term of imprisonment for 12 months and two conditional release orders of 24 months – Exhibit 3 TB3 p. 131.
Both the Applicant and Respondent submitted that the determinative issue for the Tribunal is whether there is another reason why the mandatory cancellation should be revoked – Exhibit 2 para 20, Exhibit 6 para 5.
The Tribunal is therefore satisfied that the Applicant has a substantial criminal record (s 501(6)(a)) as defined by s 501(7)(c) as he was sentenced to a term of imprisonment of more than 12 months and that he does not pass the character test.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
Subsection 501CA(4) provides for the revocation of the initial decision to cancel a visa, if, inter alia, there is another reason why the original decision should be revoked – s 501CA(4)(b)(ii).
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal is required to comply with any Directions made by the Minister under s 499 – s 499(2A), see also Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
A failure by the Tribunal to comply with the Direction or make a decision based on an incorrect understanding of it, is an error going to the exercise of the Tribunal’s jurisdiction – Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [21] per Flick J and Minister for Home Affairs v Stowers [2020] FCA 407 at [21] per Yates J.
In this matter Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) applies.
The Direction is intended to provide a framework within which decision-makers approach the task, inter alia, of deciding whether to cancel a non-citizen’s visa.
It is of relevance to note at the outset, that Direction No 90 is in some significant ways different to Direction No 79. Significantly for this matter, s 8(2) prescribes conduct that constitutes family violence as a primary consideration for decision-makers. The comparable provision in Direction No 79 (s 9) made no reference to family violence. The term “family violence” is defined by s 4(1) as follows:
“family violence means violent, threatening or other behaviour by a person that coerces or control’s a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a)     an assault; or
(b)     a sexual assault or other sexually abusive behaviour; or
(c)     stalking; or
(d)     repeated derogatory taunts; or
(e)     intentionally damaging or destroying property; or
(f)      intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.”
The overarching Principles that guide decision-makers when, inter alia, determining whether to revoke a mandatory cancellation under s 501CA are contained in s 5.2. It should be noted that Principle 5.2(5) makes specific mention of family violence as being, prima facie, a serious matter. It is manifestly clear that the Minister, when making this Direction, was drawing to the attention of decision-makers the serious and harmful effect of family violence and ensuring that this pernicious and destructive conduct was given proper consideration.
The Principles are set out below:
“(1) Australia has the 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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.”

The Direction also provides specific guidance on how to exercise the discretion. Relevantly, s 6 provides that a decision maker, informed by the Principles quoted above, must take into account the considerations identified in ss. 8 and 9, where relevant to the decision.
Further, s 7 provides guidance on taking the relevant considerations into account.
This section provides that primary considerations should generally be given greater weight than the other considerations – s 7(2). Further, one or more primary considerations may outweigh other primary considerations – s 7(3).
Before turning to the primary and other considerations, it is important to consider the evaluative task required of a decision-maker. Reference can be made to the following observations of Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
“The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Directions 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that other considerations be treated as secondary in all cases. Rather Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
This interpretation is consistent with the observations of the Full Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [34] – [35].
Section 8 sets out the four primary considerations in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
The other considerations are set out in s 9 of the Direction, namely:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including;
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
Although reorganised, the other considerations set out above are the same as those contained in cl. 10 of Direction No 79.
I will consider each of the primary considerations and other considerations in turn.
PRIMARY CONSIDERATION 1 – the protection of the Australian community from criminal or other serious conduct
Introduction
Subsection 8.1 of the Direction provides the following general guidance to a decision-maker when considering the protection of the Australian community:
“(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
As will be noted, whilst s 8.1 outlines broad public policy considerations, s 8.1(2) focuses the attention of a decision-maker on two specific considerations. Each of these will be dealt with below.
First, a decision-maker must consider the nature and seriousness of a non-citizen’s conduct to date – s 8.1(2)(a). Subparagraph 8.1.1 outlines the following matters that a decision-maker must have regard to:
(a)without limiting the range of conduct that may be considered very serious, the following types of crime and conduct are viewed very seriously by the Australian Government and community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the following types of crime and conduct are considered by the Australian Government and community as serious:
(i)causing a person to enter into or being a party to a forced marriage regardless of whether a conviction or sentence has been imposed;
(ii)crimes committed against vulnerable members of the community or government representatives or officials;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent on the decision-maker’s opinion;
(iv)a crime committed in immigration detention, during an escape from, or after a non-citizen has escaped, immigration detention or an offence against s 197A of the Act.
(c)subject to the crimes or conduct mentioned in subparagraphs (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen re-offended since being formally warned, or since being made otherwise aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status.
Second, a decision-maker is require to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – s 8.1.2.
In considering the need to protect the Australian community from harm, decision-makers should have regard to the Government’s view that the community’s tolerance for any risk of future harm is lower as the seriousness of potential future harm increases. Some conduct, and the consequential harm caused, if repeated, is so serious that any risk it may be repeated is unacceptable – s 8.1.2(1).
In assessing the risk posed by the non-citizen to the community, decision-makers must have regard to, cumulatively – s 8.1.2(2):
(a)the nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since the most recent offence.
Nature and seriousness of the conduct
As outlined previously, the Applicant has a history of physical assaults involving his first two wives, his step-daughter and New South Wales Police Officers, as well as traffic offences.
Attention will now be given to each of the considerations outlined in s 8.1.1.
s. 8.1.1(1)(a) – violent or sexual crimes, violent crimes against women and children and acts of family violence
Subparagraph 8.1.1(1)(a) outlines three types of crimes or conduct which are viewed very seriously by the Australian Government and the Australian community. The use of very distinguishes subparagraph 8.1.1(1)(a) from 8.1.1(1)(b). A decision-maker must, accordingly, take into account that an applicant who has committed a crime, or engaged in conduct, of the type outlined in subparagraphs (i) – (iii), has acted in a manner which is viewed very seriously by the Government and the broader community.
There is no evidence before the Tribunal that the Applicant has ever been convicted of committing any sexual crimes.
The Applicant has a history of committing crimes of violence against members of his family spanning a period of more than 15 years.
As set out previously, the Applicant was convicted of assault occasioning actual bodily harm against his first wife in March 2002. That assault was particularly concerning, as his first wife was eight weeks pregnant at the time. It is important to note that the Applicant was intoxicated when he assaulted her. I will deal later with the Applicant’s version of events, however for present purposes suffice it to say, the Applicant’s first wife stated that the Applicant pulled her out of her car, pushed her against a wall and then punched her to the left side of her face and then punched her again with a closed fist to her left eye and nose – Exhibit 3 TB3 p. 154.
The Applicant was also convicted of assaulting his second wife. Although the Tribunal has not been presented with any evidence of a marriage taking place, the Tribunal proceeds on the assumption that the Applicant and his then partner were living together as husband and wife. The contemporaneous Police records suggest that the Applicant assaulted his second wife whilst intoxicated, and the assault was of a particularly violent nature. The Police report suggests that the Applicant kicked his wife, pulled her along the floor by her hair and punched her at least five times to the left side of her head – Exhibit 3 TB3 p. 150. The second wife fled from the apartment and made a complaint to Police.
It should also be noted that when Police went to the Applicant’s apartment following his second wife’s complaint, they found him inside with a screwdriver in one hand – Exhibit 3 TB3 p. 151.
Then the Applicant was convicted in August 2017 of assaulting his stepdaughter, HBK, who intervened in an argument between the Applicant and his third wife. Again, the Police records suggest that the Applicant pushed HBK and pinned her against a wall with his hands around her neck and chest. According to contemporary Police reports, the Applicant then pushed HBK into the bathroom punching her in the face and head and causing her mouth to bleed. The Applicant then pushed her onto a bed and held her down. HBK managed to free herself by scratching and kicking the Applicant, whilst, at the same time, EYK intervened by scratching the Applicant on the back. The Police report suggests the Applicant behaved in an extremely aggressive manner and it is fortunate that neither HBK or EYK were seriously injured in the melee that ensued – Exhibit 3 TB3 p. 142.
It should be noted that HBK was in high school and aged 16 at the time of this assault, and, accordingly, was a child for the purposes of s 8.1.1(1)(a)(ii). A person is a child for the purposes of s 8.3 of Direction No 90 if they are under 18 years old – s 8.3(2).
There is an unfortunate theme that links all of these violent episodes. On each occasion the Applicant was intoxicated. Further, on each occasion the Applicant has taken offence at the words or actions of others, and has responded by spontaneous acts of violence. The acts of violence, in each case, were not a single action, but repeated violent actions, escalating in terms of actual violence. In the case of the Applicant’s first and second wives, the violence culminated in him punching them to the head. In the case of the second wife, it also resulted in him kicking her.
Accordingly, the Tribunal views these crimes and the Applicant’s conduct very seriously, and this weighs against him.
s. 8.1.1(1)(b)(ii) – crimes against government officials in the performance of their duties
As set out above, the Applicant violently responded to Police Officers when he was arrested on 20 September 2018. It will be recalled that this was only two months after the Applicant had been released from immigration detention, whilst breaching the terms of his ADVO and in an intoxicated state.
The Applicant pushed a Police officer in the chest, and after Police forcibly knocked him to a bed he responded by kicking a Police officer in the chin. Even though he was warned that Police would use Capsicum Spray, the Applicant again kicked at the Police officers. Despite being sprayed, the Applicant continued to resist Police by trying to kick and punch them. So violent and persistent was the Applicant’s response to the Police officers performing their duties, that it took four Police officers to gain control of the situation – Exhibit 3 TB3 p. 137.
Again, it is very fortunate that the neither the Applicant or the arresting Police officers were injured in what can only be described as an extremely violent altercation.
Mr Berg and Ms Hart submitted (Exhibit 7 paras 2 - 3) that the Applicant had only been convicted of a single act of violence against Police as the charge of resisting a Police officer in the execution of duty was not a crime of violence. Rather, it was characterised as “acts of resisting or hindering.”
Clearly, on the facts outlined, the resistance engaged in by the Applicant was not of a passive kind, such as it could sensibly be characterised as merely hindering. Rather the resistance in question was of a violent and aggressive nature. The Tribunal is satisfied that the crime in question, namely resisting a Police officer, was a crime of violence.
Accordingly, the Tribunal takes the Applicant’s violent conduct against Police officers, seriously, and this also weighs against him.
s. 8.1.1(1)(c) – sentence imposed
Subparagraph 8.1.1(1)(c) requires a decision-maker to have regard to the sentence imposed by the courts for the crimes an applicant commits. However, a decision-maker under this subparagraph is not required to consider crimes of a violent nature against women or children or crimes concerning family violence. No doubt, the reason for this is that family violence is separately dealt with by s 8.2.
In this matter consideration needs to be given to the sentences imposed for the Applicant’s assaulting a Police officer and resisting a Police officer in the execution of that officer’s duty.
On 28 September 2018 at the Burwood Local Court the Applicant was sentenced for each offence to a Conditional Release Order of 24 months duration commencing on that day and concluding on 27 September 2020. The Order was to be supervised by the Community Corrections Service.
The sentence imposed, on the balance, does not suggest that the crimes committed were of the most serious kind. If it were otherwise, then the Tribunal would have expected the Court to impose a substantial custodial sentence.
s. 8.1.1(1)(d) – frequency of offending
Apart from the domestic violence and Police offences outlined above, the Applicant has been convicted of at least seven driving offences. Those offences include driving whilst disqualified and driving under the influence of alcohol. The nature of these offences has been outlined above.
The Respondent contends (Exhibit 2 para 27) that the seriousness of these offences is aggravated by the fact that many were committed while the Applicant was subject to good behaviour bonds. Reliance was placed on the following observations of Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [45]:
“…the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users ‘go to the essential safety of the community’. Other parts of [the applicant’s] criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.”
While the Applicant’s traffic history is discussed in greater detail below, there is a disturbing feature of his offending, be it traffic or otherwise.
The Applicant frequently appeared before the Local Court of New South Wales and expressed his remorse for driving whilst disqualified and his preparedness not to repeat his disregard for the traffic laws of New South Wales in general, or his good behaviour bonds in particular. Yet despite his promises to Magistrates of the Local Court, he showed again and again a wilful disregard for the law and the elevation of his own needs above the orders of the Local Court or the safety of the community. Certainly, the Applicant was placed in a very difficult situation due to the fact that he needed to drive to effectively run his business, but no excuses can exculpate his wilful and capricious behaviour.
The Tribunal does note that the Applicant’s traffic history concluded on 18 December 2014 when he last appeared before the Local Court for driving a motor vehicle whilst disqualified – Exhibit 1 G5 p. 36. The documentation provided to the Tribunal suggests that the Applicant’s history of traffic offences spanned the period 2005 – 2014 – Exhibit 1 G5 pp. 36 – 37. It is in the Applicant’s favour that his history of traffic offending apparently ended in December 2014 and he has not since appeared before the Local Court for a traffic offence. It cannot be said, then, that there is a trend of increasing seriousness so far as traffic offences are concerned.
With respect to the Applicant’s history of family violence, it cannot be said that there is a trend of increasing seriousness as each of his offences has involved the use of violence against members of his family. The nature of violence in each case was serious as it involved the Applicant punching females whilst intoxicated, and, in the case of his first wife, whilst she was pregnant.
Nonetheless the actions of the Applicant in violently resisting arrest and assaulting Police officers in the execution of their duty when investigating a breach of an ADVO does suggest that the Applicant’s violent outbursts were becoming more serious. As previously noted, it was very fortunate that his violent altercation with Police did not result in either he or Police officers suffering serious injury.
s. 8.1.1(1)(e) – cumulative effect of repeated offending
This subparagraph draws a decision-maker’s attention to those matters where an applicant has been convicted of repeated offending. Clearly this subparagraph does not have relevance where an applicant has been convicted of a single offence, or a series of offences that were committed on a particular day or discrete period of time. The focus of this subparagraph is to ascertain the impact of an applicant’s long criminal history whether on particular persons, a unit of society or the broader community.
In this matter, the Applicant’s history of family violence has led to the breakdown of two marriages and in the case of his third marriage, the disintegration of his family. The Applicant’s repeated breaches of traffic laws led to the collapse of his business and his bankruptcy.

The medical evidence before the Tribunal indicates that whilst the Applicant has a history of hypertension no particular concerns have been raised and it is a condition that can be appropriately treated by medication, if required – Exhibit 4 TB23 p. 467. In this regard, the Tribunal notes that the IHMS Health Summary Report for the Commonwealth Ombudsman dated 29 December 2020, firstly, provides this information about the Applicant’s hypertension condition – Exhibit 4 TB23 p. 467:
“[The Applicant] has a history of hypertension for which he takes prescribed medication. There have been no concerns reported regarding this health issue during the reporting period. He continues to be monitored as per the Hypertensive Care Plan protocol.”
Second, the Clinical Reporting Nurse who made the above observations on the Applicant’s hypertension condition as made the following statement – Exhibit 4 TB23 p. 469:
“…[the Applicant] has no diagnosed conditions that cannot be properly cared for in their current placement.”
The Tribunal therefore concludes that the Applicant’s hypertension condition is one of longstanding, is being properly treated and, in the future, can also be properly treated with prescribed medication. The provision of medication in South Korea is dealt with below.
Detailed submissions have been made regarding the Applicant’s gallbladder polyps. On 5 March 2018 the Applicant was examined and assessed by a GP who made the following notes about his gallbladder condition – Exhibit 4 TB20 p. 454:
“He was also diagnosed with gallbladder polyp 80 mm 3 years ago and he states he was meant to see a surgeon before going to jail but never happened.”
On 29 June 2018 the Applicant was administered an abdominal ultrasound. The report of the treating practitioner of this procedure was as follows – Exhibit 4 TB24 p. 470:
“Conclusion:
1.Two gallbladder polyps.
2.Mild fatty change in the liver.”
The Applicant was referred to Dr George Kourtesis, General Surgeon, who examined and assessed him, and provided the following report – Exhibit 4 TB26 p. 472:
“Thank you for referring this man who does have long standing reflux.
He denies however taking Somac on a regular basis for some time. I note the previous biopsies show evidence of Barrett’s oesophagitis. He has also had a history of previous colonic polyps and I think it would be reasonable to perform an endoscopy and colonoscopy on this man.
He has a past history of gallbladder polyps but recent ultrasound shows only 2 small polyps in the gallbladder and this does not warrant an elective cholecystectomy.”
In the IHMS Health Summary Report for the Commonwealth Ombudsman prepared by a Clinical Reporting Nurse and dated 11 August 2020, the following account is given of the Applicant’s gallbladder condition Exhibit 4 TB22 pp. 462 – 463:
“In August 2019, the IHMS GP referred [the Applicant] to see the general surgeon who assessed [the Applicant] in September 2019 and agreed that endoscopy and colonoscopy was reasonable. In terms of the polyps the surgeon reported that an elective cholecystectomy was not warranted. In November 2019, [the Applicant] had another abdominal ultrasound and in December 2019 attended for the proposed colonoscopy which was entirely normal apart from some haemorrhoids, and his upper endoscopy confirmed the oesophagitis and duodenitis. Biopsies were taken and were in January 2020 reported as normal. [The Applicant] was reassured that all the pathology was clear and that some of his problems related to his anxiety. In March 2020, [the Applicant] denied reflux or abdominal pain, but also stated that he was not taking his medications as he was finding the medication times difficult…In July 2020, [the Applicant] attended review with the IHMS GP when he was requesting follow-up imaging. [The Applicant] was advised that due to the current Covid-19 restrictions the non-essential appointments are currently postponed. However, there are currently no concerns related to this physical health issue reported. Most recently on 07 August 2020, [the Applicant] requested to see a GP asking for the ultrasound again. [The Applicant] was advised by the GP that both of his recent ultrasounds showed the polyps were less than 4.5mm in size; he did see a surgeon and had the endoscopy which was normal. [The Applicant] was again reassured that the surveillance appointment will be attended once the pandemic is settled; however [the Applicant] was not completely satisfied. [The Applicant’s] gastric issues continue being managed by the IHMS GP as needed.”
A follow-up report which is dated 29 December 2020 and prepared by a Clinical Reporting Nurse contains the following information – Exhibit 4 TB23 p. 467:
“As advised during the last reporting period, in September 2019 the general surgeon reported that an elective cholecystectomy (removal of the gallbladder) was not warranted for the two gallbladder polyps and surveillance of the condition was recommenced. During this reporting period, the November 2020 surveillance abdominal ultrasound result showed two gallbladder polyps as previously reported. There have been no further concerns reported by the IHMS General Practitioner (GP) who continues to monitor the condition.”
It is tolerably clear to the Tribunal that the Applicant is receiving appropriate health care in immigration detention. Whilst he has been in immigration detention he has been assessed and treated for:
(a)Hypertension;
(b)Gallbladder polyps;
(c)Fatty liver;
(d)Haemorrhoids;
(e)Disorder of vision;
(f)Dental issues;
(g)Gastric reflux (Barret’s Oesophgitis);
(h)Viral upper respiratory tract infection;
(i)Injury to finger;
(j)Major depressive disorder;
(k)Anxiety; and
(l)Insomnia.
Despite the disruptions caused by COVID-19, which, it should be noted, impacted on the entire community and not just those in detention, the Applicant continues to receive proactive medical care. Indeed, the nature and frequency of the medical care that the Applicant receives, is most probably more targeted and frequent than if he were in the general community. This is especially the case as the Applicant has a history of stopping his medication and failing to attend medical appointments. Whilst he has been in immigration detention, his health is being closely monitored.
Whilst Mr Berg and Ms Hart contend (ACS para 41) that a non-revocation decision would cause the Applicant’s medical conditions to go untreated for an indefinite period of time, likely until the pandemic is resolved whilst he is at risk of cancer, the evidence presented does not support that submission.
The evidence presented does not support the proposition that the Applicant’s gallbladder, hypertension and other conditions are not being properly treated or monitored. On the contrary, it would appear from the voluminous medical evidence contained in Exhibit 4, that the Applicant has been the recipient of proactive and professional medical treatment.
The key question for the Tribunal, however, is the extent of the medical treatment impediments the Applicant would face should he be returned to South Korea.
First, attention should be given to the state of the medical system in South Korea. It is a matter of common knowledge that South Korea is a vibrant and prosperous liberal democracy with a world-class manufacturing industry and a first-world economy.
The Respondent points to a World Health Organisation report of 2015 which noted that South Korea had achieved universal health coverage of its population in 1989 and that health care is financed through National Health Insurance which covers the entire population – RCS p. 8 para 27.
As previously noted, the Applicant received psychiatric treatment in South Korea prior to him first coming to Australia.
There is no reason to assume that the Applicant would not be able to access the same level and quality of medical treatment in South Korea as he would be able to access in Australia. Indeed, as the Applicant would be able to communicate much more effectively to medical practitioners in Korean than he is able to communicate to medical professionals in Australia in English, it may be that the level of care he would receive would be more focused.
Although the Tribunal was not presented with any information concerning the availability of alcohol dependency treatments in South Korea, it is reasonable to infer, having regard to universal health coverage, that the Applicant could access appropriate treatment. Indeed, as he was diagnosed with an alcohol dependency problem prior to coming to Australia, it is also reasonable to infer that he would be referred by any treating psychiatrist or psychologist for appropriate treatment, if it was considered necessary.
Mr Berg and Ms Hart contend (ACS para 40) that the Applicant will not be able to use the health care system in South Korea should be deported. The evidence on what the situation in South Korea would be should the Applicant be returned is sparse.
Under cross-examination, the Applicant testified that the health care system in South Korea was “quite good”. However, he went on to testify – Tr. 6.5.2021 p. 73:
“But the South Korean Government knows that I have been living in Australia for long period of time…so I know that I cannot get any benefit from the South Korean healthcare system.”
Apart from this assertion, there is no independent evidence to support the proposition that the Applicant, as a citizen of South Korea, would be denied access to the universal health care system on his return. It may be that the Applicant would be subject to a waiting period before he could assess certain free medical treatment because of his absence from South Korea for a prolonged period. However, there is no evidence before the Tribunal to support the proposition that the Applicant as a citizen of South Korea, would be indefinitely deprived of the benefits of its universal health care system – Exhibit 2 para 54. If there was such evidence, then different considerations would apply.
There is no evidence concerning the Applicant’s age that would raise issues of impediments if he is removed from Australia – Exhibit 2 para 55.
Language and cultural barriers
There is no evidence that there are any substantial language or cultural barriers facing the Applicant should he return to South Korea.
The Applicant first came to Australia as an adult, keeps in contact with his family and friends in South Korea and has, since first arriving in Australia, visited South Korea on more than one occasion and for lengthy periods.
The evidence presented suggests that the Applicant would be able to re-integrate into South Korean society with minimal difficulty.
Social, medical and economic support in South Korea
The Applicant’s mother, father and brother live in South Korea. In addition, he has three uncles/aunts and two cousins who also live in South Korea – Exhibit 1 G32 pp. 143 – 144.
At the Hearing, the Applicant testified that he had a good relationship with his parents and he said that they “are very nice and warm” – Tr. 6.5.2021 p. 72.
The evidence before the Tribunal is that the Applicant has been in regular contact with his parents since he first came to Australia, has visited them, left his daughter in their care for a prolonged period and has received financial assistance from them.
The Applicant testified that he called to speak to them every day, or at least once every two days Tr. 6.5.2021 p. 73.
Despite being 78 and 84 years of age, the Applicant agreed that if he was returned to South Korea his parents would support him – Tr. 6.5.2021 p. 73. Obviously, the level of support his parents could offer would be limited because of their age.
When giving evidence, the Applicant testified that he had some experience with international trading – Tr. 6.5.2021 p. 72:
“Yes, when I was doing commercial cleaning business, I also had a house with a shop, and I also imported dried foods from South Korea and so to Korean grocery stores as a wholesaler and reversely I also traded exported Australian health food to South Korea.”
If not for his alcohol problems and subsequent traffic convictions, the Applicant may have succeeded with his commercial cleaning business. Further, as the above testimony indicates, the Applicant has experience with international trading. In short, the Applicant has considerable business experience. In such circumstances, there is no reason to assume that the Applicant would not be able to find employment in South Korea and, possibly, to operate his own small business.
The nature of medical support the Applicant may receive has been discussed above.
Conversely, as the Respondent rightly concedes, the Applicant would have emotional hardship because of his separation from his wife, daughter and step-daughter – Exhibit 2 para 53.
Having lived in Australia for more than two decades, the Applicant would also face some initial problems in re-integrating into South Korean society. As a person with few financial assets, this difficulty would be compounded in the short term. The Applicant would also be deprived of his circle of friends and companions, especially those who he associated with at his Church.
The Tribunal has taken into account the References that have been provided in support of the Applicant – Exhibit 3 TB18 pp. 331 – 335. It is very clear from reading those References that the Applicant is highly regarded by those he associates with. It is a matter of great regret that the Applicant’s alcohol dependency and frequent breaches of the law have overshadowed his other good deeds and his positive relationships with his circle of friends, associates and colleagues.
Conclusion
The Tribunal accepts that the Applicant will have impediments on his return to South Korea, however the nature and extent of those impediments will be ameliorated due to the presence of the Applicant’s mother, father and brother and his ability to communicate and interact effectively with fellow Korean citizens. Further, with the effluxion of time, the extent of the impediments should progressively minimise.
The Tribunal, however, recognises that the emotional hardship caused by the separation of the Applicant from his third wife and daughter will be especially difficult and painful. This difficulty will, unfortunately, be of longstanding.
In these circumstances, the Tribunal finds that this Consideration weighs in favour of the Applicant, but should be given moderate weight.
Impact on victims
The primary victim of the Applicant’s offending in August 2017 was his stepdaughter HBK.
The Tribunal has been presented with Statements from HBK as well as receiving testimony from her on 6 May 2021.
At the Hearing HBK was questioned about a statement she had made where she said that the absence of the Applicant had left a huge impact for both her and her mother. HBK gave the following testimony – Tr. 6.5.2021 p. 103:
“INTERPRETER:…At first his absence caused a great deal of financial problem and the next is I cannot actually concentrate on studying as a student as our family environment is unstable. And certainly my mum’s mental state is unstable as well.
MR BERG: Can you tell me more about yourself please, about the impact on yourself?
INTERPRETER: Yes, even there are many. Firstly, yes, he – just financial support for education is an issue as I’m a student and also as you know our family environment is unstable I experience issues with, you know, mental health. Most of all seeing my mum going through difficulties is the hardest thing for me, and those are the impacts I can think of at the moment….
INTERPRETER: He my step-dad used to do all the things at home but now since he is there my mum cannot do things on her own and she needs help but as she doesn’t have him she finds it very difficult. And my mum is mentally unstable….and as I said before the financial impact is huge, and in all aspects there are, yes, big impact on her…
MR BERG: [HBK], are you working a the moment as well as studying?
INTERPRETER: At the moment I am thinking of deferring studying to next year because it might be difficult to both study and work. So just if I just work now it might be a help to my mum.’
The Tribunal accepts that the absence of the Applicant from the family home has had deleterious financial impacts on both EYK and HBK. Both EYK and HBK apparently suffer from mental health conditions, and the ongoing financial strain brought about by the Applicant’s detention has had negative consequences for them.
The Respondent correctly contends (Exhibit 2 para 57) that the risk that the Applicant may commit further domestic violence offences if released in the community, particularly against HBK, is a matter that needs to be taken into account.
The Tribunal was presented with a report dated 8 October 2019 by Mr Peter Stoker, Psychologist – Exhibit 3 TB13 pp. 295 – 306. The report has some inherent defects which render the conclusions reached by Mr Stoker problematic. Most importantly, Mr Stoker noted – Exhibit 3 TB13 p. 304:
“He had no history of violence up until meeting his second wife.”
It would appear that Mr Stoker was unaware that the Applicant was married three times and that he was convicted of assaulting his first two wives. His report, therefore, is predicated on the assumption that the Applicant’s assault of his stepdaughter was out of character.
Nonetheless, Mr Stoker opined that the Applicant had a dysfunctional relationship with his third wife and stepdaughter and provided the following advice – Exhibit 3 TBG13 p. 305:
“I advised him against any future contact with his stepdaughter.
In other words, I advised he should live independently if he is not deported.”
Mr Stoker referred to a “dysfunctional dynamic within his marital situation” (p. 304)and it would appear to the Tribunal that, at the very least, the risk of future conflict between the Applicant and his stepdaughter cannot be ignored or downplayed.
The Tribunal has to weigh the financial benefits to HBK if the Applicant is returned to the community against the physical risk of the Applicant again assaulting her.
On the balance, this Consideration weighs against the Applicant, having regard to the risk of further domestic violence, but should only be given moderate weight.
Links to the Australian community
Strength, nature and duration of ties
Subsection 9.4.1(1) requires decision-makers to consider any impact of the decision on the non-citizen’s Australian family members, where those family members are Australian citizens, permanent residents or have a right to remain in Australia indefinitely.
It will be noted that this Consideration limits the focus of the inquiry to family members who have a right to reside in Australia indefinitely, whether by virtue of citizenship or other legal status.
The Applicant’s daughter, YJK, is an Australian citizen. The evidence presented suggests that she is estranged from her father and has not been in direct communication with him for some time. Nonetheless the Tribunal has been presented with a Statutory Declaration dated 5 March 2021 (Exhibit 12) which has been referred to earlier. YJK deposed as follows:
“25) I was raised and grew up with my father for the entire 16 years to become who I am today, that my father sacrificed a lot for me. He played mother role when I was down, then he lifted me, taught me through; I was fearful that he is tough dad to protect me, back me up…
27) People asked me where my parents are, why friends are abandoning me. I am struggling to find a connection with my friends and the people around me. They applied for my status as ‘bad daughter who has kicked out the house’ they don’t know how hard my dad was trying to keep me safe and want me back. They don’t know how many nights sleepless and teared up burned out my eyes. Only my father knows. My only family is my father…
29) My father is in the stage of giving up everything I understand. There are many reasons for him just to pack his stuff and get out of this situation quickly. He is doing that for me, fighting for me with a legal proceeding. However, if permitted, in battle he is, fighting with the lawyer, how about his cancer and mental illness? He is fighting alone and will be left alone in Korea. He would get in trouble in Korea, and he would suicide, I don’t know.”

The above extracts starkly highlight the mental torment that YJK is going through and the bonds of love she claims she has with her father. The Tribunal accepts that despite the breakup of the family as a result of the Applicant’s detention, his daughter, despite all the problems that have befallen her and her alienation from her stepmother, stepsister and father, nonetheless remains committed to her father and wants him to remain in Australia.
There is also evidence before the Tribunal that the Applicant has provided some financial support to YJK since he has been in detention – Exhibit 3 TB17 pp. 327 – 328.
On 23 April 2019 both EYK and HBK were granted Partner (subclass 801) visas, with a right of stay in Australia for an indefinite period after each arrival – Exhibit 3 TB5 pp. 159 – 164.
The Tribunal has already set out at some length the views of EYK and HBK about the Applicant being returned to South Korea. Suffice it to say, both have deposed and testified that they are in financial difficulties, both suffer from mental ailments and in the case of HBK she may have to cease her University studies. Both have stated that their lives would be better if the Applicant were released back in the community and could again financially care for them. The Tribunal has taken into account this testimony.
The Respondent made these submissions – Exhibit 2 para 62:
“The applicant claims that his wife, daughter and stepdaughter would face emotional and financial hardship if he is removed to Korea. There is no evidence to suggest that the applicant’s wife and children are financially dependent upon him. Contrary to the concerns raised by the applicant’s stepdaughter, she and her mother would not be forced to return to Korea in circumstances where they have been granted permanent partner visas. Further, while the applicant’s removal to Korea would involve a physical separation from his wife and daughters, there is no evidence before the Tribunal to suggest that they would not be permitted to visit him in Korea, or relocate there with him if they so decide. Nor is there any suggestion that he would be unable to maintain contact with his family in other ways.”
(footnotes omitted)
There is evidence before the Tribunal that EYK and HBK have suffered financially since the Applicant’s detention. Whilst they are not financially dependent on the Applicant, both EYK and HBK have testified that they have been struggling on the income they receive. Further, YJK has been living in straitened circumstances since the breakup of the family, including living for extended periods in a refuge.
The Tribunal agrees that there is no evidence to suggest that that EYK and HBK would be forced to return to South Korea as they have the right to remain in Australia indefinitely. However, the issue presented to the Tribunal is not whether as a matter of law they would be forced to return to South Korea, but whether, because of lack of finances, this would become an economic necessity.
Finally, the Applicant has a cousin (BJH) and two nephews (TK and SK) who are Australian citizens – Exhibit 1 G21 p. 101. The Applicant stayed with his cousin when he left the family home in 2017 – Exhibit 1 G37 p. 160. The Tribunal has previously referred to the short statement provided by BJH (Exhibit 21) and well as the accompanying photographs (Exhibit 22).
As previously noted, both the Applicant and his daughter (YJK) have been in close contact with TK and SK over a long period of time and have a positive relationship with them. The impact on TK and SK if the Applicant is removed from Australia, has been previously dealt with.
Subsection 9.4.1(2) requires a decision-maker to consider the strength, nature and duration of any other ties to the Australian community, with regard being had to the following:
“a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to the time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.”
The Applicant first arrived in Australia on 30 July 1997 when he was an adult aged 23 years. Accordingly, the Applicant has lived in Australia for most of the last 24 years.
The first point, then, to note is that the Applicant did not arrive in Australia as a young child and for that reason retains linguistic, social and cultural links to South Korea.
As the Respondent submits (Exhibit 2 p. 16 para 61) the Applicant’s offending commenced less than five years after he arrived in Australia, and continued unabated until 2018 when he was removed from Australian society and where he continues to remain in detention.
The Tribunal accepts that in many respects the Applicant has made a positive contribution to the Australian community.
The Applicant has worked in the cleaning business since 2001, and for a number of years was the employer of up to 25 persons. The Tribunal also has considered a reference provided by Mr Kniles Comafay, the Business Operations Manager of Waterpoint Building Management dated 27 November 2020, which attests to the Applicant’s work ethic. Mr Comafay stated that the Applicant has been employed by Waterpoint Building Management since 1 November 2016 as a cleaner. He stated that the Applicant was a “high achiever in his work ethic” who diligently completed his duties and who “never had a negative thing mentioned about him from any of his direct co-workers” – Exhibit 13.
Mr Comafay also provided a statement in support of the Applicant dated 13 March 2018. That statement is in most respects the same as the statement quoted above, but does include a further paragraph – Exhibit 1 G26 p. 118:
“If [the Applicant] is not able to work with the company any further, it would be a loss of specific skill and talent for our work force. The main negative impact on the company would be our limitation on working out a redundancy of promotion and growth within his sector, as we were planning to offer [the Applicant] the opportunity to be 2IC within the cleaning sector.”
In addition, the Tribunal has received a number of testimonials from persons connected with his Church and friends. The evidence before the Tribunal is that the Applicant has been involved in community work and has been a productive member of the community – Exhibit 1 G27 pp. 119 -120, Exhibit 3 TB18 pp. 331 – 335.
The Tribunal paid particular regard to the character reference of 1 March 2021 provided by the Reverend Beom Seok Kim, Senior Pastor with the Sydney Full Gospel Church – Exhibit 14.
Reverend Kim stated that the Applicant has been doing volunteer work for the Church since 2003. From October 2011 until February 2014 he undertook 2,784 hours of volunteer work including helping Koreans to complete social benefit applications and mentoring young Korean church members who were experiencing stress.
From October 2015 until July 2017 the Applicant helped found a Special Choir which raised funds to help the homeless, domestic violence victims, and women in need of shelter and accommodation.
Finally, the Tribunal was presented with the Statutory Declaration of TVN which, as previously discussed, outlined the assistance the Applicant gave to her and her children when he was the subject of ongoing domestic violence – Exhibit 15.
The Tribunal, then, has been presented with evidence of the Applicant contributing to the Australian community through his employment, his longstanding volunteer work with his Church and private acts of charity.
The evidence presented leads to the following findings:
(a)the removal of the Applicant from Australia will have a negative impact on his wife, stepdaughter and daughter. The Applicant’s wife and stepdaughter are struggling financially, and the absence of the Applicant has caused them trauma. Further, the Applicant’s daughter has been living in a refuge as she blames her stepmother and stepsister for the breakup of the family and the detention of the Applicant. If the Applicant is removed from Australia it is likely that the family will be permanently broken up;
(b)the Applicant arrived in Australia as an adult and after a relatively short period of time commenced a long history of breaching the traffic and domestic violence laws of New South Wales. This long history of breaking the law was persistent and continued despite repeated statements by the Applicant that he would not reoffend;
(c)conversely, the Applicant has a long history of performing volunteer work for his Church and has helped many Korean immigrants to integrate into Australian society;
(d)the Applicant has a long history of employment and, as was clear from the references provided by Mr Comafay, is held in high regard by his employer and his colleagues;
(e)there is also evidence of many private acts of charity the Applicant has performed, and a particularly touching Statutory Declaration from Ms TVN – Exhibit 15.
Overall, then, the Tribunal finds that this Consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa, but only moderate weigh can be placed on it.
Impact on Australian business interests
Subsection 9.4.2(3) requires decision-makers to consider any impacts on Australian business interests if the Applicant is returned to South Korea, noting that an employment link would generally only be given weight where a non-citizens return to their country of origin would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
No evidence was presented that the Applicant has been involved in the delivery of a major project or delivery of an important service in Australia.
In the circumstances, the Tribunal places no weight on this consideration.
Conclusion
Having considered all of the matters in s 9.4.1 and 9.4.2 the Tribunal concludes that, overall, this Consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa, but only moderate weight can be placed on it.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation decision.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the considerations prescribed in the Direction.
The Tribunal makes the following findings:
(a)Primary Consideration 1 weighs heavily in favour of non-revocation;
(b)Primary Consideration 2 weighs heavily in favour of non-revocation;
(c)Primary Consideration 3 weighs moderately in favour of revocation;
(d)Primary Consideration 4 weighs moderately in favour of non-revocation;
(e)Other Considerations – International non-refoulement obligations is of neutral weight;
(f)Other Considerations – Extent of impediments if removed weighs moderately in favour of revocation;
(g)Other Considerations – Impact on victims weighs moderately in favour of non‑revocation;
(h)Other Considerations – Links to the Australian community weighs moderately in favour of revocation.
The Tribunal, having weighed the various Considerations, finds that the ongoing risk that the Applicant poses to the Australian community should he be released, outweighs the other Considerations in his favour.
The Applicant has a long history of repeatedly offending. It is manifestly clear that the Applicant suffers from mental health issues.
All three of the Applicant’s marriages have been marked by alcohol fuelled outbursts of violence. In the case of his first two marriages, he was convicted of violently assaulting both wives. In the case of his current marriage, he was convicted of assaulting his stepdaughter.
The Applicant’s current marriage is especially sad insofar as both his wife and stepdaughter suffer from mental health issues. It is the third marriage for both the Applicant and his wife.
Mr Stoker opined in his 8 October 2019 report that the Applicant may be suffering from Asperger’s Syndrome, and while this was not a formal diagnosis, he nonetheless warned against the Applicant returning to his wife and stepdaughter – Exhibit 3 TB13 pp. 304 – 305.
The ongoing commitment of the Applicant to his third wife and stepdaughter has resulted in the breakdown of his relationship with his daughter. This is a sad and tragic development, and the fact that YJK left the family home and lived in a refuge adds a further dimension of misery to this very unfortunate situation.
It is the case that the EYK has suffered from a range of ailments and is not financially well off. It is also the case that her daughter, HBK, is struggling to attend University and also earn income to support herself and her mother. The absence of the Applicant has resulted in both EYK and HBK being placed in a difficult financial situation.
The Tribunal has also had regard to the good deeds performed by the Applicant both through his Church and on his own. The assistance he gave to TVN and her family was both life changing and potentially life saving.
It is also tolerably clear that the Applicant has good relations with BJH’s two children as well as TVN’s children. This removal from Australia will be disadvantageous to all four children.
The testimonials from those who have associated and worked with the Applicant demonstrate that he is highly regarded as a friend, associate and work colleague.
If not for his alcohol dependency, the Applicant would have been a successful businessman, having employed a number of persons in his cleaning business. Mr Stoker opined that the Applicant was a person of superior intelligence, being in the top 6% of the population – Exhibit 3 TB13 p. 305. There is little doubt that absent any mental health issues and alcohol abuse, the Applicant has the potential to be a very successful entrepreneur.
The Tribunal is satisfied that the Applicant would be able to reintegrate into South Korean society if he was returned. He is fluent in the Korean language, has family members to support him and would obtain the benefit of an advanced health care system. There is no reason to conclude that any of his medical conditions, physical and mental, would not be appropriately treated.
It is then very disappointing to conclude that the risk of the Applicant again reoffending outweighs all of these positive considerations.
The Applicant’s history of repeat offending over a period of more than 15 years is of particular concern. The Tribunal formed the view, having watched and listened to the Applicant give evidence, that he is not remorseful for his previous conduct. The Tribunal is concerned that if the Applicant is released into the community that any present protestations of contrition would evaporate with the effluxion of time and a pattern of law breaking would again manifest itself.
If the Applicant did manifest in the future conduct of the type which has been a hallmark of his residence in Australia, then it is likely that both his wife and stepdaughter would be at risk of further assaults and any person, including Police Officers, who intervened to assist them would also be placed at risk. This is a risk which is of a magnitude that cannot be downplayed, and it is with regret, that the Tribunal has formed the view that the risk the Applicant poses to the Australian community outweighs those other Considerations which are in his favour.
DECISION
The Tribunal determines:
(1)Pursuant to subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), the publication or other disclosure of the documents set out in Exhibit 5, and the information contained therein, is restricted to:
(a)EYK;
(b)      the Applicant’s legal representatives;
(c)      the Respondent and its legal representatives;
(d)      Members and staff of the Tribunal in the course of performing their duties.
(2)The decision under review is affirmed.

I certify that the preceding 522 (five hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

......................[SGD]...................
Associate
Dated: 28 September 2021

Dates of hearing: 28 April & 6 May 2021

Date final submissions received: 1 July 2021

Counsel for the Applicant: Mr Peter Berg and Ms Parisa Hart

Solicitor for the Respondent: Mr Adam Cunynghame

[2021] AATA 3474

28 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice