Yang and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 653
•7 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 653
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1676
GENERAL ADMINISTRATIVE DIVISION ) Re
Hong Yeop Yang
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date7 July 2005
PlaceSydney
Decision The decision under review should be affirmed.
[Sgd] Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – skilled (independent) subclass 136 visa – visa refused on the grounds of character – past and present general conduct – allegations of falsely obtaining Australian educational qualification – examination of the visa applicant’s education in Australia including the courses undertaken – examination of the visa applicant’s work history whilst in Australia – discretion that the tribunal may exercise where the visa applicant fails the character test – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant and his family – consideration of the best interests of the child of the applicant – decision under review affirmed.
Migration Act 1958 ss 499, 501, 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
7 July 2005 Professor GD Walker, Deputy President SUMMARY
1. The applicant, Hong Yeop Yang, who is aged 37 and a citizen of Korea, first came to Australia on 30 January 1992 on a subclass 560 student visa. He returned again on 27 February 1998 on a further student visa and was subsequently granted a business long stay visa. On 30 August 2001, while residing in Australia, he lodged an application for a skilled (independent) subclass 136 visa with the Australian Embassy in Seoul to enable him to migrant to Australia. Included in his application were his spouse, Won Kyung Lim, and daughter, Ho Yeon Yang.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mr Yang lodged with his subclass 136 visa application, a false Diploma of Business Administration, allegedly obtained by bribing an official of the Excelsior College, Sydney, New South Wales, for the purpose of supporting his permanent residence application. The respondent also states that his spouse, Ms Lim, also lodged a similarly obtained false document. The respondent therefore refused Mr Yang’s visa application. That is the decision to be reviewed by the tribunal.
Background
3. The applicant, Mr Yang, was born in Seoul, Korea, on 22 January 1968, and is aged 37. He is a citizen of Korea. On 15 July 1991, he married Ms Lim, who was born in Anseong-Kun, Korea, on 25 February 1967 and is aged 36. Their daughter, Ho Yeon Yang, (known as Deborah) was born on 10 July 1993 at the Gold Coast Hospital, Queensland, and is now aged 12.
4. Mr Yang, accompanied by his spouse, first arrived in Australia on 30 January 1992 on a short-stay student subclass 560 visa. Further student visas were granted to him on-shore on 24 May 1993, 18 October 1993, 1 July 1994, 3 June 1996, and 10 September 1996 (T p147). Between 17 January 1994 and 29 April 1996, Mr Yang was enrolled at Bond University, Queensland, graduating with a Bachelor of Arts degree (T p70). On 10 July 1993, his daughter, Ho Yeon Yang was born.
5. Mr Yang and his family departed Australia on 23 February 1997 (T p125). He returned to Australia, with his family, on 27 February 1998 on a further student visa, valid until 31 January 2000, and on 20 January 2000, he was granted a long-stay visitor subclass 686 visa valid until 17 October 2000. On 6 November 2000, he was granted a long-stay business (temporary) subclass 457 visa valid until 6 November 2001 (T p147).
6. Between 13 November 2000 and 13 August 2001, Mr Yang was employed on a full time basis as office manager for Mizpath Overseas Education Co Pty Ltd in Sydney, New South Wales (T p75).
7. On 24 August 2001, Mr Yang, through his then migration agent, Song Eun Park of Kangaroo Migration, Sydney, lodged an application for a skilled (independent) subclass 136 visa, nominating his spouse and daughter as secondary visa applicants, at the Australian Embassy in Seoul (T4 p25). That visa would allow him to reside permanently in Australia. His application and accompanying documents were received by the Australian visa office in Seoul on 30 August 2001. Included with his application, was a Diploma of Business Administration certificate awarded to him on 3 August 2001 from the Excelsior College, Sydney, (T p73) and a certified transcript of his results (T p74), together with a similar certificate and transcript of results awarded to his spouse, Ms Lim, on 3 August 2001 (T pp115-116).
8. On 6 November 2001, his migration agent also lodged an application for a long-stay business subclass 457 visa, together with an associated bridging visa A which was granted on 6 November 2001, pending the outcome of his later application (T p126).
9. On 4 October 2001, the migration office at the Australian Embassy in Seoul informed Mr Yang that his application for a skilled visa had been placed in a queue and that the current processing time for applications in the Seoul office was 34 weeks (T5 p119).
10. On 12 November 2001, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), Rocks Office, Sydney, received an anonymous allegation that Mr Yang and his wife had paid the Principal of the Excelsior College, Sydney, a sum of money to receive their diplomas, and that the visa applicant had worked on a full-time basis for the three to four years whilst in Australia on both student and tourist visas (T p150).
11. On 12 February 2002, Mr Yang and his wife were interviewed (separately) at the office of DIMIA at The Rocks (T6 p120). At that interview which was conducted in English after Mr Yang assured the officer that an interpreter was not required, he admitted that he mistakenly lodged an old résumé with his long-stay business visa application which did not include his Diploma of Business Administration received from Excelsior College. He said that his migration agent had told him that his wife should also do the course in order to increase their points for their permanent residency application. He also said during the period 5 February 1998 and 20 January 2000, he dropped out of two courses before completing his bachelor of arts (T p121). With regard to the allegation that he paid money to obtain his diploma from Excelsior College, he was given seven days to make submissions on this issue.
12. On 18 March 2002, Mr Yang and his wife were again interviewed by officers of DIMIA, with the assistance of an interpreter, concerning the allegation that he had made arrangements, by way of paying a bribe to the principal of Excelsior College, to obtain the diplomas in support of his application for permanent residency (T p133). At the interview, Mr Yang said that he and his wife undertook the diploma course between July 2000 and August 2001. When asked to explain the course structure and syllabus, their answers were vague and evasive and they were unable to identify course material that they were shown. They were also unable to provide their course material and notes even though they had only completed the course less than six months previously. The interviewing officer was of the view that it was “reasonable to find that if Mr & Mrs Yang began the course, they did not complete it as they know so little about what each course should have taught them …” (T p134).
13. On 22 September 2003, Mr Yang, care of his then migration agent, was served with a notice of intention to refuse his visa made by the principal migration officer at the Australian embassy in Seoul dated 18 September 2003, on the ground that he had lodged a fraudulently obtained document with the department and giving him until 6 November 2003 to respond (T pp136-137). Mr Yang did not respond to this notice.
14. By letter of 29 December 2003, a delegate of the Minister informed Mr Yang that his skilled independent subclass 136 visa was refused on the ground that he did not pass the character test because of his past and present general conduct and having exercised her discretion to refuse the grant of a visa (T8 p123). This decision was addressed to Mr Hong Yeop Yang c/- Kangaroo Migration, Suite 2 Level 12, 300 George Street, Sydney, but through a departmental error, the decision was never sent.
15. On 29 October 2004, Mr Yang and his family departed Australia (T p146). At this time, it was realised that the decision to refuse his skilled independent visa had not been communicated to Mr Yang. By letter dated 21 December 2004, addressed to Mr Yang’s solicitor, Christopher Levingston of Christopher Levingston & Associates, Mr Yang was notified that his skilled independent visa application was refused. On 23 December 2004, Mr Yang lodged an application for a review of that decision by the tribunal.
16. At the hearing, the applicant was represented by Mr Levingston, and the respondent was represented by Catherine Petrie, solicitor of Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken into evidence as Exhibit R1, together with the evidence tendered by the parties at the hearing. Mr Yang and Ms Lim gave oral evidence by telephone from Korea.
Relevant Law and Policy
17. Under s 501(1) of the Migration Act 1958 (“the Act”) the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
For the purposes of this section, a person does not pass the character test if:
…
((c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
18. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
19. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
20. In his amended statement of facts and contentions the applicant conceded the character issue. The only issue for the tribunal to determine in this case is, therefore, whether nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa of a skilled independent subclass 136 visa.
Evidence
21. Ms Lim gave evidence in person with the assistance of a Korean interpreter.
22. At the hearing Mr Levingston explained the changed approach of his client’s case. Mr Levinston had spoken to the former principal of Excelsior College (now closed) and had been told that the signatures appearing on the Diploma of Business Administration certificates (T p73, T115) were in fact forgeries. The provenance of those forgeries was unclear, but neither Mr Yang nor Ms Lim had created them. They had, however, made use of them in connection with the visa application, and for that reason it was now conceded that the conduct of both husband and wife disclosed very serious breaches of the Migration Act within the meaning of paragraph 2.6 of Direction No 21. Mr Yang would not be called to give evidence because in doing so he might disclose matters making him liable for prosecution for an offence.
23. In her oral evidence Ms Lim conceded that her husband had obtained the certificates from the college. At the time she did not know how that was done but now she was aware of how he obtained them. Neither she nor her husband had completed the course of study required for the diploma. They had not originally intended to “buy” the qualifications but had enrolled and intended to complete the course in the normal way. But their plans were altered by the involvement of their families. Mr Yang’s parents objected to their coming to live in Australia. In the course of a visit to Australia during which they were staying with the couple, her parents-in-law argued with them over the fact that Ms Lim was studying while her husband was working, and they thought that was not a desirable state of affairs. Consequently she began to seek employment instead of pursuing her studies and did not attend the college. Her husband had nevertheless obtained the certificates. She repeatedly said, however, that she did not know how to explain how he obtained them and that she did not know what had happened.
24. Because her parents-in-law continued to insist that they did not want their son to live in Australia, the couple returned to Korea for a year between February 1997 and February 1998. Their daughter Deborah, then aged about three and a half, stayed with them during that time. The whole family spoke Korean in the home, and in fact Deborah had only spoken Korean up until the age of four. She still speaks that language most of the time.
25. She had not attended kindergarten in Korea, however, and could speak only conversational Korean. Her reading and writing that language would be below kindergarten level, whereas she has performed well at school in Australia.
26. Through the family she is familiar with Korean culture, but Ms Lim had not asked her if she wanted to stay in Australia rather than move to Korea. Once, when she realised that the present hearing might lead to her being required to move to Korea, she cried all night, saying it would be hard for her to go to school there as Korean teachers were more “strict and scary” than their New South Wales counterparts and she was afraid of being called a fool or stupid.
27. Ms Lim said she had not investigated the possibility of enrolling Deborah in one of the foreign schools in South Korea that use English as the language of instruction, but said she had spoken to people she knew, including her sister who knows numerous transferred Korean workers. She understood that high school fees could be $70,000, but when asked whether that was a per annum figure or related to the entire high school course, she replied she could not answer, because she and her husband had excluded that option and were concentrating on the option of her daughter remaining in Australia. Deborah had become an Australian citizen (at the age of 10, by operation of law under s 10 of the Australian Citizenship Act) and could not be a dual Australian-South Korean citizen.
28. If a visa is refused, the plan is for her to remain in Australia, living with Ms Lim’s sister and her family. Ms Lim said her sister is a kind woman, and her husband is a kind man, who is training to be a pastor in the Uniting Church. They have a son and daughter slightly younger than Deborah. She said that it would be a loving and supportive atmosphere for her daughter and she was confident that they would be supportive towards her. In Korean culture the relationship between an aunt and a niece is regarded as a particularly close and important one, stronger than the relationship with grandparents. At all events that was the factual situation here.
29. At the same time, Ms Lim said, their relationship with their only daughter was very close. She turns 12 next month and Ms Lim would be able to discuss with her the physical changes she would be undergoing and the consequences they would entail. The relationship was important to her daughter at this time of her life and she did not think her sister could do as good a job as she would herself.
30. She conceded that the production of the forged documents in connection with the visa application was disgraceful and that it had led to their continuing to tell lies about their qualifications, including at the departmental interview of 18 March 2002 (T pp133-134). She said it was very hard to lie and that she regretted the conduct a great deal and regarded it as shameful. Nevertheless, as was noted above, she had been rather evasive when asked about precisely how her husband had proceeded to “buy” the diplomas. She conceded that the episode meant that she was prepared to lie for selfish reasons but said that she only wanted to protect the family.
31. It was clear that Ms Lim and Mr Yang were focused on emphasising the option of Deborah’s remaining in Australia, preferably with both her parents. For that reason, if they had not investigated education options in Korea, it was because they had made a deliberate tactical decision not to. As I pointed out to Mr Levingston before he began his submissions, a few seconds of work on the internet reveal a wide range of English-speaking private schools in South Korea. In Seoul alone, they include the Seoul Foreign School, Seoul International School, Seoul Academy and the Seoul British School. There are also private schools in Pusan, Taejeon and Uijongbu. Tuition fees range from about US$2000 to almost $13,700 per child per school year. Some schools offer monthly payment plans. The International Christian School Songtan campus charges about US$3600 per year. There is also an extensive network of American schools, but they are primarily for the children of United States government personnel.
Submissions
32. Mr Levingston indicated at the outset that, given the small amount of evidence to be adduced by the applicant, a large part of his case would rest on submissions. He argued that the tribunal could rely on Ms Lim’s evidence because she had openly acknowledged that the risk of hardship could be mitigated by Deborah’s living in Australia in a familial setting with her aunt, uncle and two cousins. Her willingness to face that option added to the weight of her evidence. She had agreed that the conduct was disgraceful, but the discretion under s 501(1) as elaborated in Direction No 21 was “broad enough to forgive any sin”. There was no evidence of any criminal propensity in either of the parties, before or since, and the lie had not been adhered to in the tribunal. As the argument set out in the applicant’s original statement of fact and contentions foreshadowed, the applicant could have put the respondent to proof of the assertion that the two diplomas were not what they have purported to be, a burden that might have been difficult for the respondent to discharge. Ms Lim had not given details of the way in which the documents had been obtained when asked in cross-examination, but although she was in a general sense knowingly concerned in the breach, she was unaware of the finer details. Her demeanour showed her willingness to tell the truth, and that was relevant to the question of whether such conduct was likely to be repeated. There was no criminal history in either party, they were fundamentally honest people who were ashamed of their behaviour.
33. On the issue of general deterrence, there were no statistics about the impact of particular decisions on law-breaking – that is, the concept of general deterrence – but specific deterrence had already taken effect on the applicant in this case and there was no likelihood of repetition. The expectations of the Australian community were an important factor and Australians would consider that persons admitted to live in this country would obey its laws. But the existence of an Australian citizen child with ties to the community would modify those expectations, to allow her to stay in Australia with her parents.
34. Deborah is under 18 and her best interests must be a primary consideration. No psychological report had been produced, because the applicant was not claiming any particular hardship or any pathological problem. But there was no substitute for the help of a parent for a child who was in the middle of her formative years facing the impending changes and problems of adolescence. Ms Lim had stressed that she would not take Deborah back to Korea if a visa were refused, and the fact she put her own interests second after those of her child showed that there was a good family relationship.
35. As an Australian citizen Deborah had integrated into this community and had given up her legal right to live in Korea. In Australia she had free access to educational and community services and an exceptional health care system. These were considered fundamental rights of an Australian citizen. She had spent most of her life in Australia and cannot write in the Korean language. She could, however, attend a foreign school in Korea and the fees charged would not be out of her parents’ reach, and being apparently of above average intelligence she could cope with the transition. There would be no cultural or language barriers to her becoming established in Korean society. But while she would not suffer serious consequences, any more than a child who is sent to boarding school at that age, she would prefer the Australian option and the family is the fundamental unit of society. It was particularly important to keep it intact when a child was becoming a teenager.
36. Ms Petrie contended on behalf of the respondent that the issue was Mr Yang’s character, not his wife’s. The false certificates that had been used were an integral part of the application and led to the applicant’s receiving certain exemptions in relation to English requirement and other matters. The reprehensible conduct had been continued at the interview with the departmental officers and had continued for part of the proceedings in the tribunal. It involved a serious offence under s 234 of the Act. The continued efforts to mislead the tribunal, until their solicitor discovered the truth, had a bearing on the likelihood of recidivism. The need for general deterrence favoured refusal of a visa and the community would expect such a result in the case of a person who was manifestly not of good character and showed disrespect for law by relying on a false certificate on a number of occasions. The fact that they had a child who was born in Australia would make no significant difference, as parents should not be able to hide behind a child in order to avoid the consequences of their own conduct.
37. Deborah’s best interests could be met by her living in Korea. Her father was in employment and her mother had indicated that she would also seek to enter the job market. Both are educated and had previously been employed. Her interests are best served by being with her parents and she could accordingly move to South Korea where she would face no great language and cultural barriers. She is a bright child and could readily catch up with her classmates, and in any event foreign schools in which English is the language of instruction would be available to her. At that age she would have a low need for any government benefits. In due course she could obtain Korean citizenship if she wished. The child’s interests would not be harmed by the refusal of a visa.
38. As regards the other considerations under paragraph 2.17 of Direction No 21, there would be little family disruption following from refusal of a visa because both families of both spouses all live in Korea, except for Ms Lim’s sister. Ms Lim herself is not a permanent resident of Australia, and accordingly her interests do not receive significant weight under paragraph 2.17.
Application of the Law and Findings of Fact
39. As stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), Mr Yang passes the “character test” having regard to his past and present general conduct. The “character test” is applied by reference, first, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
40. The Full Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, considered the phrase “past and present general conduct” as found in s 501(6)(c)(ii) and stated:
In a comprehensive division of conduct into two categories that represent fundamental considerations in the making of a determination about character, the category that most naturally forms a dichotomy with criminal conduct, under the heading of ‘general conduct,’ is conduct in general. The root meaning conveyed by the adjective ‘general’, as is made clear by the New Shorter Oxford English Dictionary (1993) is the idea of universality. In s 501(2), it expresses a contrast with the particularity inherent in the reference to ‘criminal conduct’. We do not think that there is any warrant for extracting from the broad word ‘general’, a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as the person’s criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly.
In Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984 the tribunal considered the applicant’s conduct in making false and misleading statements in his visa application when deciding whether the applicant passed the character test. The tribunal stated that having considered the applicant’s conduct it:
[C]oncluded that his actions show a disposition to place his personal interests above his wider duty to abide by the migration laws of the Australian community whom he seeks to join. In the context of the Act, it seems to me that this disposition assumes a greater importance than it might in some others. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia’s migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed by the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met.
41. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Mr Yang does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
42. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), (b) and (c) which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law, whether the non-citizen has in connection with the application for a grant of a visa provided a bogus document or made false or misleading statements and whether the non-citizen has made a false or misleading declaration on an approved form about the non-citizen’s character.
43. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
44. Before making a decision on whether Mr Yang passes the character test, it is appropriate to set out my findings of fact on that issue. I find that by relying in his application on documents he knew to be forgeries, by making false and misleading statements in his visa application, in two separate departmental interviews and in his application to the tribunal for review, Mr Yang engaged in conduct causing him to fail the character test in s 501(1).
45. Having decided that he is not of good character, I must then decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to him. In exercising this discretion, the tribunal must have regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
46. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
47. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
48. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, aims to deter other people from committing the same or similar offence.
Protection of the Australian Community
49. The first factor to be considered under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on the tribunal, states in paragraph 2.6(c) that offences against the Act, including “presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. Section 234(1) of the Act also provides that a person shall not in connection with entry or proposed entry into Australia, present, make or cause to be made to an immigration official a statement that, to the person’s knowledge, is false or misleading. The penalty for breaching this section is imprisonment for ten years or 1,000 penalty units or both. I find that the conduct in this case, as summarised in paragraph 44 above, is to be treated as very serious. The fact that it was maintained for a substantial part of the proceedings in the tribunal, and might never have come to light at all but for the assiduity and professional integrity of Mr Levingston, suggests a real risk of repeat offending with respect to migration law and in other contexts.
50. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. In this case, I conclude that granting a visa to a person who has engaged in such blatant and sustained misconduct and has displayed no evidence of rehabilitation would send entirely the wrong message to other persons who might be considering engaging in similar conduct.
Expectations of the Australian community
51. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
52. In my view the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it. Where a visa applicant has uttered and relied upon forged diplomas obtained from an Australian educational institution, apparently by means of bribery, and refrains from giving evidence in his own case before the tribunal because it might expose him to prosecution for a serious offence, I do not think the community would have any hesitation in saying that the perpetrator should not be admitted to Australian society.
The Best Interests of the Child
53. The third primary consideration is the best interests of the child. The tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.
54. In this case, Mr Yang has a daughter, Ho Yeon (Deborah) Yang, aged 12, whose interests must be considered. Deborah was born at the Gold Coast Hospital, Queensland, on 10 July 1993 and her birth registered in the Family Census Register, Seoul, on 6 August 1993 (T p61). All but one of her formative years has been spent in Australia. Deborah’s best interests would presumptively be served by remaining with her parents (Direction No 21 paragraph 2.15). Both sets of grandparents also live in Korea, as do four uncles and one aunt. If she lived in Korea with her parents, she would be able to maintain familial relationships with her extended family.
55. No written submissions were lodged with the department as to any hardship which Deborah would suffer if she were unable to reside in Australia with her parents. At the hearing, though, Ms Lim said that her daughter had a strong preference for remaining in Australia rather than moving to Korea. If a visa were refused, however, she could remain in Australia living with Ms Lim’s sister and her family, where she would have a loving and supportive atmosphere. She would then continue to attend schools in New South Wales, presumably returning to South Korea to spend vacations with her parents.
56. It was not suggested that in doing so she would face any problems more significant than those encountered by any other girl of 12 who, for one reason or another, is sent to boarding school. On the other hand, if she were to move to South Korea, she could be with both her parents and enjoy a reasonably comfortable lifestyle. She could attend one of the foreign schools that exist there and, being apparently a bright child, would have no particular difficulty in making the transition if she commenced high school there. Being educated in South Korea she would have the opportunity of gaining a proper grasp of written and spoken Korean, a skill that is likely to be a considerable advantage for an Australian citizen in the commercial world of the twenty-first century. It was conceded that the fees charged by at least some of the established foreign schools would not be beyond her parents’ reach. With her existing fluency in spoken Korean and her familiarity with that nation’s culture, she would have no particular difficulty in establishing herself in Korean society. At her age she would have little need for publicly funded medical treatment or other government programs, and in any event it was not suggested that the standard of health care available to her in South Korea would be lower than the general level of such services in Australia.
57. In my view, while the best interests of the child in this case do favour the grant of a visa, they do not strongly do so and could fairly readily be outweighed by other primary considerations.
Other Considerations
58. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
59. The refusal of a visa to Mr Yang would not adversely affect his family as they all live in Korea. Ms Lim’s family, with the exception of a sister and her family who reside in Australia, all live in Korea and would not be adversely affected by a refusal. Ms Lim herself is not an Australian permanent resident, and accordingly her interests do not receive significant weight under paragraph 2.17. I must also take into account the particular seriousness of Mr Yang’s conduct and the absence of any evidence of rehabilitation.
60. On weighing all the considerations, I conclude that the primary considerations of community protection and expectations outweigh the best interests of the child, which in any event are not seriously impaired in this case, and the other considerations.
61. The decision under review should be affirmed.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 16 and 17 May 2005
Date of Decision 7 July 2005Solicitor for the Applicant Mr C Levingston, Christopher Levingston & Associates
Solicitor for the Respondent Ms C Petrie, Clayton Utz
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