You and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3022

You and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3022 (15 September 2022)

Division:GENERAL DIVISION

File Number:2022/5497          

Re:Jae Bok You

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member J Rau SC

Date:15 September 2022

Place:Adelaide

The decision under review is set aside and substituted with a decision to revoke the cancellation of the Applicant’s visa.

.........................[sgnd]......................................
            Senior Member J Rau SC

Catchwords

MIGRATION – mandatory cancellation of Class BB Subclass 155 Resident Return visa) under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 90 – consideration of best interests of minor children – consideration of ties to the Australian community- decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked.

Legislation

Migration Act 1958 (Cth)

Cases

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Afu v Minister for Home Affairs [2018] FCA 1311

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

FYBR v Minister for Home Affairs [2019] FCA 500

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501 (3A)

REASONS FOR DECISION

Senior Member J Rau SC

15 September 2022

INTRODUCTION

1. The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on 30 June 2022, not to revoke the mandatory cancellation of his Class BB Subclass 155 Resident Return visa (“the Visa”).[1] His visa was cancelled on 12 May 2020 under section 501 (3A) on the basis that he did not pass the character test.[2]

   [1] Exhibit 3, G2, pp 11-31.

   [2] Ibid, G2, Attachment L, pp 201-207.

2. Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of being sentenced to 4 years and 1 month’s imprisonment on 14 June 2019.[3]

   [3] Ibid, G2, Attachment A, p 32.

3. The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.

4. The hearing was held on 5 and 6 of September 2022. The Applicant was represented by Mr Simon Jeans of Jeans Lawyers and the Respondent was represented by Mr Edwin Taylor of Mills Oakley Lawyers.

5. The Applicant and his witnesses gave evidence by Teams from the Sydney registry of the AAT. The Applicant utilised the services of an interpreter. This fact, combined with the distance of the camera, resulting in a very small, indistinct image, made an assessment of the Applicant’s demeanour (and that of other witnesses for that matter), difficult. With that caveat, the Applicant appeared to give evidence in a direct and responsive manner.

6. The Applicant called 3 additional witnesses. These were his wife, Mrs Choi, his son Mr Sung You and his daughter-in-law, Mrs Kim. Mr Sung You mostly gave evidence in English, although he sought the help of the interpreter on occasions. Mrs Kim and Mrs Choi gave evidence through the interpreter. They all gave direct and helpful evidence, particularly concerning the implications for the Applicant’s family in Australia, if the Applicant were to be returned to South Korea.

7. The Applicant was also prepared to call Mr Patrick Sheehan, psychologist, and 4 other character witnesses who have provided statements to the Tribunal. The Respondent indicated that they were not required for cross-examination, so they were not called. Their evidence was received by the Tribunal.

   Background Facts

8. The Applicant was born in South Korea on 23 March 1956.[4]

   [4] Ibid, G2, Attachment C5, p 93.

9. He first came to Australia, aged 42, on 11 September 1998[5] on a visitor visa. He was sponsored by an employer for a work visa. This was granted on 11 November 2002.[6] He was granted a Resident return visa on 8 January 2013[7] permanent residence. He has travelled overseas and returned on multiple occasions since then.[8]

   [5] Ibid, G2, Attachment K, p 200.

   [6] Ibid, G2, Attachment J, p 197.

   [7] Ibid, G19, p 297.

   [8] Ibid, G2, Attachment K, pp 198-200.

10. The Applicant’s wife and two adult children are Australian citizens. He has been married to his wife for 40 years. His son and his wife have two sons aged 11 and 6.[9] His daughter lives and works in South Korea. His mother and three brothers live in South Korea. He has maintained friendships in South Korea and has visited there often.

    [9] Exhibit 4, A3, p 14.

11. The Applicant was educated in South Korea. He completed the equivalent of year 12 at the age of 18. He studied mechanical engineering for 2 years at a technical college. He completed 3 years of compulsory military service. He operated a billiards room for about 5 years. He did not work for 7 or 8 years. He began a residential construction company with a friend. After coming to Australia, he obtained work installing industrial fire sprinklers in commercial buildings. Prior to his imprisonment, he had worked for the same employer for over a decade.[10] He has contributed as a taxpayer.[11]

    [10] Exhibit 3, G2, Attachment G1, p 143.

    [11] Ibid, G2, Attachment G3, pp 152-163.

12. The Applicant has a network of friends and family who are supportive. He is involved with the Sydney Onnuri Church. He has done a lot of volunteer work. The Lead pastor of the Church, Pastor Kenneth Chun provided a statement in support of the Applicant dated 3 July 2020. In this he says:

    “……

    Ever since he moved to Australia for his family’s sake, Mr. You has been very diligent in supporting his family in the way. He goes to work at 4:30 in the morning and returns home late at night. Working long hours without much rest has been tough for him and his family, but not only did he want to support his family in whatever way he could, he used what little free time he had to provide help for others through his service in the local church & community. He has a generous heart to give and dedicated much time to service in within the church, specifically Milal Ministry (which serves children with physical and mental disabilities) in Sydney, but providing them with lunch and interacting with the children in various kinds of activities, caring for them every Saturday for nearly two years. Within the church, he has served as a member if our mercy ministry (which serves the local homeless and elderly population) and kitchen ministry (which provides meals for those attending our Sunday worship service as well as when we have special events and activities) for nearly three years. In addition to that, Mr. You has also helped out with the Lions Club and through the club he has helped out organizing events to raise awareness about local farms and reaching out to the local community who were in need of financial and social help. Periodically, they have raised scholarship fund to support those students who are in need of help.

    ……”[12]

    [12] Ibid, G2, Attachment H5, p 180.

13. The Applicant is deeply involved with his family and he, along with his wife, have performed a substantial role in caring for his grandchildren.

14. The Applicant does not have a history of substance or alcohol abuse although he did report having a low tolerance to alcohol.[13]

    [13] Ibid, G2, Attachment G1, p 144.

15. Prior to December 2017, the Applicant had nine convictions for exceeding the speed limit, committed between 2004 and 2016. Two of these convictions, in 2015 and one in 2011 involved him in having exceeded the speed limit by more than 10 but less than 20 km/h.[14] He had no other criminal record. He was, up to this time, a high contributor to his family and the broader community. His support for others, was manifested in acts of community service as a volunteer. He was a hard worker and a taxpayer.

    [14] Ibid, G2, Attachment G2, pp 150-151.

16. On 22 December 2017, the Applicant attended a Christmas lunch. During the course of this lunch, he consumed alcohol. He was subsequently involved in a collision with a parked vehicle, as a result of which one of the passengers in that vehicle died, and the other was seriously injured. The Applicant himself was also seriously injured.

17. The Applicant was charged with and ultimately convicted of offences relating to this motor vehicle accident on 14 June 2019. The sentencing judge in the District Court of New South Wales criminal division, Judge Turnbull said:

    “HIS HONOUR: This is the judgment in relation to the sentence of Jae Bok You, it relates to two offences arising from his driving on the early evening of 22 December 2017. He is charged with driving in a manner dangerous occasioning death, and an additional offence of driving a vehicle furiously causing bodily harm. To those two offences he has pleaded guilty at the first reasonable opportunity. As I understand it, he pleaded guilty in the Local Court on 8 November 2018 and he was arraigned in this Court and adhered to his pleas here. That is a matter which I will take into account in a manner which I will explain in due course.

    These are the agreed facts which reflect what he did. On 22 December, then aged 61, he went to the Casa Restaurant in Darling Harbour for a Christmas work function. CCTV footage from the restaurant shows the offender consuming red wine and mixed drinks. That footage shows him having his first glass of red wine at 12.01pm which he consumed over five minutes. He then consumes some food. At around 12.07pm the offender pours a second glass of red wine and sips this slowly. At around 12.19pm the glass which is almost empty is topped up, a third glass of wine. At around 12.43pm the offender pours a fourth glass of wine and sips it slowly. At around 1.01pm he starts his fifth glass of red wine and around 1.23pm the glass is almost empty when a work colleague tops up his glass. At around 1.20pm the offender is handed a dark coloured mixed drink which a colleague takes a large sip of and then the offender tops this drink up with the remaining red wine in his glass. By 1.58pm the offender has consumed most of that mixed drink.

    At around 2.14pm the offender has a coffee, around 2.15pm a glass of red wine is poured for him, the offender has a sip of this glass but leaves the remainder of the wine, consumes the coffee and some water. At around 2.40pm the offender has some dessert and leaves the restaurant around 2.52pm. During the time at the restaurant the offender consumed an entrée, a main meal and a dessert. He then caught a bus from the City to West Pennant Hills and then walked five to 10 minutes to his home.

    At approximately 4pm Barry Polgase then aged 72 years of age left his residence at St Peters with Tuan Yun Michael Heuw who was then 63 years old. They intended to travel to Barry’s sister’s house in Macksville for Christmas. Barry was driving his silver coloured Nissan X Trail with New South Wales registration BWX 67B and Michael was seated in the front passenger seat. Barry also had his dog in the back of the vehicle. Between 4.30 and 4.45pm Barry parked his vehicle facing eastbound on the northern side of North Rocks Road, Carlingford in order to take a short break before getting onto the Motorway to leave Sydney. They parked behind a green Holden Cruze with New South Wales registration BX 08 NH which was parked unattended outside 563 North Rocks Road. North Rocks Road is a residential street with schools located on the northern side. The road consists of a single lane which allows traffic to travel in an eastbound direction and another single lane which allows traffic to travel in a general westbound direction. The east and westbound lanes are separated by two solid painted lines and both lanes are approximately four metres in width. The road is bounded by a raised concrete kerb and gutter, the road is wide enough for cars to park on either side. The road is straight with a slight decline eastbound, the road surface is bitumen sealed construction and at the time the road was dry. Michael took the dog out of the vehicle to go to the toilet and then Michael and Barry sat in the vehicle and had something to eat. After approximately 10 to 15 minutes they put their seat belts on and Barry turned the vehicle’s engine on.

    At approximately 5pm Brett Atuell was driving east on North Roads Road at approximately 50 kilometres an hour when he heard an engine revving behind him. This vehicle was a white Nissan Maxima with New South Wales registration ASV 95Q driven by the offender. The offender appeared to be travelling well in excess of the sign posted speed limit which was 50 kilometres an hour and a number of witnesses estimate the offender was travelling at approximately 100 kilometres an hour. Mr Atuell looked in his rear vision mirror and observed the offender’s vehicle pass Carlingford High School and veer left out of his lane. The offender’s vehicle then mounted a raised concrete island at the bus stop opposite Tobruk Avenue. The front of the offender’s vehicle collided with two directional signs mounted on the island by a galvanised pole.

    The collision uprooted the signs and caused damage to the front bumper of the offender’s vehicle.

    The offender continued to drive east back into his lane and the offside corner of his front bumper and fog light fell off his vehicle. The offender overtook Mr Atuell’s vehicle on the left, continued east in the driving lane on North Roads Road for a short distance. The offender again veered to the left and collided heavily with the rear of Barry Polgase’s vehicle which was still stationary. The front of Barry’s vehicle collided with the Holden Cruze parked in front and then Barry Polgase’s vehicle mounted the kerb, travelled along the nature strip and the rear near side collided with a power pole. The vehicle then came to rest across the driveway of number 565, approximately 15 metres from the area of impact. The parked Holden Cruze pushed in an easterly direction into the driving lane and collided with the rear near side of a passing Lexus vehicle which was driven by Sasha Thirimanne. Mr Thirimanne was not injured. Witnesses rushed to the scene and rendered assistance whilst also contacting police and ambulance and that was at approximately 5.07pm.

    The offender got out of his vehicle and according to witnesses appeared dazed, unsteady on his feet and did not respond when first asked if he was okay but he nodded instead. When the ambulance arrived at approximately 5.34pm they noted that the offender smelt strongly of alcohol. Paramedics were unsuccessful in their attempts to resuscitate Barry Polgase and he was pronounced dead at the scene.

    Michael Heuw was trapped in the vehicle and was removed from the wreckage by police and taken by ambulance to Westmead Hospital. Michael remained in intensive care for two days and then remained on a ward. As a result of the collision Michael received the following injuries: he had a small left epical pneumothorax, he had left lung contusions, left sided rib fractures, displacement of a number of ribs, a widened media stynum, external fracture, associated right side pneumothorax and a surgical emphysema with bilateral pulmonary contusions. Michael’s injuries were classified as of “moderate severity” and would not classify as grievous bodily harm as defined under the law. Michael was discharged from hospital on 26 December 2017 and was instructed to see his general practitioner in two to three days. He was advised to avoid heavy lifting for a month.

    The offender was conveyed by ambulance to Westmead Hospital, a blood sample was taken from the offender at 8.20pm. That sample was found to have present a blood alcohol concentration of .041 grams to the 100 millilitres. The samples also indicated a Fentanyl concentration of less than .001. At the time of the collision the offender was around 170 to 175 centimetres tall and of thin build weighing around 70 to 75 kilograms. The offender advised police he did not consume alcohol on a regular basis. As a result blood alcohol concentration was considered by an expert Dr Judith Perl. Based on the blood concentration at 8.20pm of 0.041 grams per 100 millilitres and the likely rate of elimination at 0.015 grams per 100 millilitres per hour (the generally accepted median range of elimination rates in humans) her opinion was that at 5pm the offender’s blood alcohol concentration would have been in the range of 0.0745 to 0.124 grams per 100 millilitres and the most likely blood alcohol concentration being 0.091. With a blood alcohol concentration of between 0.074 and 0.09 there would have been impairment of all major driving skills required for the driving task and more complex skills would be more significantly impaired. At a blood alcohol concentration of 0.12, impairment of driving skills would be significant. The following skills and functions would be impaired at that concentration of 0.074: reaction skills, perceptions, information processing, motor coordination, reduction in visual field and increase in attention and risk taking behaviour.

    As a result of the collision the offender’s vehicle sustained severe damage to the front end with the engine compacted rearwards towards the front tyres. On the nearside of the bonnet towards the front was a partial imprint from the vehicle registration plate. The imprint included parts of the letters WZ and 6. The Nissan X Trail sustained very severe damage to the rear end, damage to the front end and damage to the nearside rear wheel area. On the front bumper just above the registration plate was a partial registration plate imprint with parts of the numbers 0 and 8. The wooden power pole which was set back approximately two metres from the kerb had been slightly dislodged within the ground and there was a vertical split on the pole. The cable was hanging down from the pole. Police noted that there was no evidence of braking by the offender prior to or during the collision.

    Police carried out a forensic examination of the offender’s vehicle; it was noted there was no mechanical defect or failure of the vehicle that may have been a contributing factor towards the collision occurring. The offender was interviewed by police on 31 December 2017 in the presence of a Korean interpreter and his son. The offender told police that he consumed two glasses of wine between 12.20 and 1.30 at a work lunch, he went home and was driving to Epping to go to the shops when the collision occurred, he collided with something on the side but does not recall anything after that. He thinks the speed limit on North Rocks Road is either 50 or 60 kilometres an hour and it felt like he was driving slower than 50 kilometres an hour and he rarely drinks alcohol.

    Victim impact statements were given by the victim’s son Joshua Polgase. Further statements were read on behalf of his sister Joan Peterkin and his daughter Jane Polglase and a victim impact statement was given by Billy Yip, who was his significant other. The Court also received a victim impact statement written out at the dictation of Michael Heuw being a victim himself at the second count. This described the effect of his injuries and the collision on him; he described specifically the impact upon him of the loss of his friend Barry. To say the statements were moving is to understate the significance of the loss of a man of such outstanding character, a loss which has significantly affected his friends and family. I acknowledge the impact of this man’s crime upon those family members and friends and the grief they have suffered and continue to suffer to this day.

    The maximum penalties for these offences are: driving in a manner dangerous occasioning death, 10 years imprisonment with no standard non-parole period; in relation to driving a vehicle furiously and causing bodily harm the maximum penalty is two years imprisonment. Under the provision (s52A of the Crimes Act) a person is guilty of the offence of dangerous driving occasioning death if he is the driver of a vehicle which is involved in an impact that occasions death, and at the time of the impact was driving the vehicle under the influence of intoxicating liquor or at a speed dangerous or in a manner dangerous to another person or persons. In this case the Crown asserts, and it is not disputed, that the offender was, at the time of the impact, driving the vehicle in the circumstances set out in all three of those subparagraphs. That immediately makes it evident that in relation to this most serious offence, this is a serious example of it.

    There is a check or sounding board available to me in the guideline case of R v Whyte. It is not a tramline, it cannot be used to confine the exercise of the sentencing discretion, it is in its terms not a starting point; it is a reference point. There are aspects of this matter which set it outside what was said to be, in that case, a frequently recurring case of an offence under the section. I am disinclined to see in this matter that it falls at the level of the generally appropriate range where moral culpability is high as reflected in that case. There is, in that guideline case, set out a number of listed aggravating factors and I am assisted by reference to that list. I have had regard to those as well as other aspects which I must have regard to in the course of considering the facts in this sentencing exercise. Those factors set out a range of matters which assist me in setting where this offence sits in terms of objective seriousness. I note that the guideline is not a comprehensive check list. Certainly the absence or presence of characteristics set out in that guideline does not have any mathematical relationship to the sentence to be imposed.

    I do not understand it to have been part of any submission that the offender makes that he did anything but abandon responsibility when he got behind that wheel and drove as he did. The combination of circumstances are such as to make it obvious. The offender is well aware of the fact that he abandoned responsibility for his own conduct that day. The offender’s counsel accepts the presence of intoxication reflecting blood alcohol concentration in the mid-range sufficient to impair all driving skills. He accepts speed; the offender was travelling well in excess of the sign posted speed limit. He accepts that he was driving erratically in the lead up to the collision, so much is obvious. He accepts that there were other users of the roadway put at risk.

    In relation to those concessions the Crown provides further particulars noting that in relation to the degree of intoxication it was in the mid-range. The Crown reminds the Court not to fall, though, into the error of aggravating the offending in this instance to a level which might breach the so-called Di Simoni principle by exposing the offender to a sentence at the aggravated level provided by a separate offence category under s 52A(2). I do not do so.

    In relation to the speed limit, witnesses estimated this man’s speed at 100 kilometres an hour from time to time and that was obviously well in excess of the 50 kilometre restriction. There was erratic driving. While it is not said that the offender was driving aggressively I am of the view that the collision with the directional signs on the traffic island and the continuation of driving whilst the vehicle was damaged, and thereafter in overtaking of a vehicle on the left, combined with generally veering left out of his lane ultimately colliding with the victim’s stationary vehicle, is a level of erratic driving verging on the aggressive. It defies clear categorisation, nonetheless it comfortably sits as driving in a manner which is very dangerous indeed to a large number of people, whether they be road users or people present nearby.

    It was the Christmas period; the offender was apparently making his way to the shops. There seemed to be a significant number of cars and people about, as might be expected at that time of year in that location, though luckily school was on holidays. I accept there were a number of people put at risk. The journey length to which people were exposed to this risk was some three kilometres and I am told that with the sign posted driving speed it would have taken or should have taken eight to nine minutes. That is not a short journey. In addition, why the offender did not stop after that collision with the sign post is startling. Why the offender continued to drive when the vehicle was damaged as it was is incomprehensible. Why he got behind the wheel at all remains unexplained beyond a vulnerability to alcohol. Whilst an aggravating factor in Whyte is ignoring warnings, that ignoring of warnings is contemplated as being warnings from inside the car from people who were travelling in it. I have to say that the sign collision and the car damage must surely have been a warning. Had he pulled over there and then no one would have been hurt. Abandonment of responsibility is directed to the objective gravity of the offence as well as the degree of effect on the driver of the alcohol. It is the course of driving, the danger imposed in all of the circumstances which has to be assessed; in my view there is a high degree of moral culpability here, having regard to all of the objective circumstances relevant to that assessment. The aggravating factors I have acknowledged are present to material degrees; some must be given greater weight than others, for example, speed and erratic driving, some evidently not so much weight, but in my view the collision, in these circumstances, was in itself capable of being a warning to the driver. For whatever reason it was ignored.

    The offences under this provision sit on a continuum when assessing moral culpability and the focus on that aspect is because it is the driver that manipulates the vehicle; that, as I have already indicated to the parties, and there is no demurrer, no suggestion otherwise, means that this man will be serving and must serve a full-time custodial penalty, and in the terms of that sentence there must be a reflection of that in the period imposed.

    I assess this matter as being on the cusp of the high range of objective  seriousness. The moral culpability involved in this case and the abandonment of responsibility is very high.

    This man pleaded guilty at the first reasonable opportunity. He is remorseful and his contrition is palpable as is his acceptance of responsibility for these offences. This is not an instance of a frequently recurring case under s 52, as I have said, not least because of the age of the offender, but also because it is an early plea.

    He is now 62. I afford him the utilitarian discount commonly afforded to people in the criminal courts in 2019. I will reduce the custodial penalty that I intend to impose by 25% for the utilitarian value of the plea. As well as the man killed there is another victim of what the offender has done. There is Mr Heuw, the victim of the second count. He described specifically the impact upon him personally his injuries, as I have indicated.

    Death is an element of the offence. The Court is obliged to recognise that and, bearing in mind the maximum penalty that has been provided by parliament is the upper limit of any available sentence, is constrained in that way. Before the law all are equal, and the consequences of the loss where someone has died cannot be directly reflected in the punishment beyond the culpability of the offender in occasioning it. The sentence imposed can never replace a dead man or woman in the eyes of those who love them and feel his loss now. Any sentence imposed can never compensate them for that loss. The public expression of that loss is acknowledged by the public expression to those present in the courtroom of the victims reading, or having them read, the impact statements. Those present in the courtroom hear and see the consequences of the offender’s actions, and the words and faces and the dignity of those left behind, and that is an important aspect in the administration of justice, and I am going to turn to that again in a moment.

    I take particular note of Mr Heuw’s statement as to his injuries. I take them into account as a further explanation of the nature of the bodily harm and I recognise that is towards the upper end of injuries contemplated by the section.

    The Crown asked me to have regard to traffic matters.

    Firstly, I should confirm that this offender has no criminal record whatsoever beyond those traffic matters.

    Secondly, I comfortably find that prior to the commission of this offence the offender was of good character, indeed of exceptional character, and I will return to that later.

    I have reviewed the motor traffic record thoroughly, which reveals the offender was provided with an unrestricted licence on 2 December 1999 and until December 2016 he had nine speeding offences. The first was in 2004; of those speeding offences, four were for speeds of not more than 10 kilometres per hour over the limit. They were camera detected. Two more were for no greater than 15 kilometres per hour over the speed limit. I cannot say that that record is exceptional in the modern world. It certainly does not in my view suggest a need for personal deterrence. I do not accept the Crown’s submission that that aspect of the record gives rise to the need for personal deterrence in this case. That is particularly so in light of my assessment of this man’s response to the horror of what he has done and the fact that he now turns to face a substantial period of imprisonment at the end of his, long law abiding, productive life. The fact that he will have an opportunity after serving his sentence to make further contributions to society is something I accept he well understands he has deprived, through his actions, another of doing.

    On the other hand, general deterrence looms large here, not just because it is important in this category of offence, but because of the prevalence of the activity of driving, and the terrible consequences that can flow from the failure to safely drive a motor vehicle. It is also, as in this case, necessary because the offender was intoxicated, and there is a particular need for general deterrence in relation to drinking and driving. Whilst understandably the focus is commonly upon the terms and indeed the length of any sentence imposed, nothing can be a greater deterrent to those inclined to get behind the wheel, as this man did, in the condition he was in, and drove, as this man did, in the way he did, and kill a man and injure a man, as this man did, than to be present in the courtroom during the reading of victim impact statements made by those left behind. During the course of that the offender sat in the dock closely attended by the interpreter, who is here today, and heard and saw the demeanour of those who were giving the statements.

    Mr Heuw indicated that he does not know how he could live without Barry in his life. He finds it pointless in making new friends when they can be taken so easily. He needs professional help. Barry’s sister indicated that there was going to be a special family Christmas and she was waiting for her brother. He was so special to her, her only sibling, and now he has gone. He was a kind and caring man. His son confirmed, in stark imagery, how he returned home, walked in the door and saw the faces of his wife and children who had just heard, what he described as the truly terrible news. He talks about being deprived of a relationship with a great man, who was his father, a gentle, kind soul with a love of nature, and always very thoughtful for others. His father was looking forward to retirement. He cannot discuss matters with him now or seek his advice, as he had hoped that he would be able to do. It has affected every aspect of his life and of his children’s lives. There is not a day that goes by where he does not think of his dad: “If this had been a genuine accident I think it would have been easier to handle and forgive” he wrote.

    His daughter, Jane, indicated again the kind of man who the community has been deprived of, and who their family has been deprived of. A man with special qualities, who had served in a job in a hospital for 38 years. He was described as loving grandfather, they had a close bond, and it has caused severe stress to her, as one would expect. Her relationships within the family unit, her work life, her personal life have all been upended and, of course, the unfairness of someone who was of a brilliant mind and a beautiful person being taken this way is evident in the extreme fear of losing another loved one unexpectedly. Her children were deprived of their Grandfather, she has been deprived of her sense of wellbeing physically, emotionally, psychologically, socially and financially. She wrote “I don’t know how long this will continue”.

    Billy Yip had a relationship with the deceased for 34 years. He had been his significant other. He had purchased a plot near Barry’s grave in Macksville Cemetery and he has attended there on his own and sat alongside Barry’s gravesite alone for days.

    The purposes of sentencing are set out in the Crimes (Sentencing Procedure) Act. Section 3A requires a court to ensure that offenders are adequately punished for the offence and to make the offender accountable for their actions and to denounce the conduct of the offender. Whilst I do not think personal deterrence plays a role, nor do I consider that the offender is anything but rehabilitated and that he no longer poses a threat of further offences, I recognise, as I must, that denunciation and general deterrence are important factors here. I must deter others. I must recognise the harm done to the victims and the community.

    This requires an objective reasoned and measured determination of appropriate punishment, which properly reflects the moral culpability of the offender. That is the reflection of the community interest. Denunciation is to condemn the offender for his or her conduct by doing so publicly, and that it is society’s condemnation, through the Courts, of a particular offender’s conduct which counts. The taking of a life has always been recognised by law as a most serious crime. To the extent that the protection of human life and personal safety is a primary objective of the system of criminal justice, the value the community places upon human life is reflected in the expectations of that system.

    What has been said already does not mean that there is nothing that can be said on behalf of the offender. The Court has been assisted by a number of documents. Exhibit 1 was a psychological report under the hand of Patrick Sheehan, dated 21 February 2019. The truth of its contents was confirmed by the offender on oath in this Court. He gave evidence and was cross-examined. Exhibit 2 contained a series of testimonials from a variety of people including his wife, and there was also a sentencing assessment report which confirmed many aspects of the other material and the evidence given here.

    In the witness box the offender appeared stoic, reflective and respectful.

    He was the nervous and grave man described in the psychological report. He was attended here in this Court then, and today, by a significant number of family and friends. They were exposed to the victim impact statements and the detail of his crimes. He utilised the interpreter extensively. He came across as a man who was remorseful, genuinely remorseful. He also came across as someone who is resigned to his fate; he was genuinely appalled by his behaviour, shocked and saddened by the consequences. I accept he takes responsibility for his wrongdoing. He gave candid responses to inquiries about why he felt the need to get into a car at all. He had contemplated taking his own life. He was evidently affected as he sat and listened to the victim impact statements. I saw moments when his demeanour reflected his horror at what he had done. When asked about having heard the victim impact statements from the son and daughter of the deceased, who are both adults, in circumstances where he, himself, has a son and daughter, who are both adults, where he, himself, has two grandchildren. When asked how he felt upon hearing the victim impact statements he said, “My fault was too great. My wrongdoings too great. I really felt, I really felt very sorry”.

    The offender was raised in a rural town in South Korea by parents of Christian faith. He is the second of four boys. His upbringing was free of any adverse matters. It was described as uncomplicated. He has no history of behavioural problems. He had positive and still has positive relationships with all his family. His mother remains alive. She is elderly. She has multiple health problems. His family in Korea are aware of the charges and are naturally concerned about his future. He completed Year 12 in South Korea. He went to a technical college and did mechanical engineering and, thereafter, he did three years compulsory national service in 1998. He travelled to Australia on a tourist visa and then obtained a work visa. He commenced working installing industrial fire sprinklers in commercial buildings and it is that field he has worked in for many years. He has worked for his current employer for over a decade.

    He continues to be enthusiastic about his work, but clearly he now faces full time custody. He is deeply concerned about maintaining his financial obligations. He has been the breadwinner for his family. He has a network of prosocial friends in South Korea and Australia. His primary social environment, however, is the Korean Christian Church Community, as well as his employment. He is not socially isolated and that is a reflection of his character. He has a number of close friends that support him. He has had one significant intimate partner and that is his wife. They met when he was 25, they married three years later and they moved to Australia in 1998 at the request of the wife’s sister.

    The offender and his wife live together in West Pennant Hills. They have two children, aged 35 and 31, and as I say two grandchildren. Whilst it is an administrative matter and not a matter for this Court in consideration of sentence I do note that an aspect of his subjective response to his offending is that he is fearful about his visa cancellation and removal from his family. As I have noted at 62 years of age that prospect is said to be deeply distressing to him. It is that distress which I note, not that prospect. He has not used any illicit substance. He had a moderate alcohol use during his life, commencing from the age of 21. He suggested to the psychologist that there was a familial trait of low tolerance to alcohol. He was cross-examined on that and that is relevant because on this day he acknowledged consuming a number of alcoholic drinks by the agreed facts and, whilst denying being heavily intoxicated, it was clear he was intoxicated to a significant degree. Nonetheless, he has no alcohol-related charges or any charges at all, as noted before. The offender was also injured in the collision. He had a ruptured intestine and underwent emergency surgery with resectioning of both the small and large intestine. He also suffered arterial damage in his leg and a stent has been inserted. He was in Westmead Hospital for a fortnight. He has reported chronic back pain since the motor vehicle accident, but that has not been medically investigated, and he also had some mild hypertension. In this regard his wife notes her husband’s suffering from his injuries and pain becomes worse at night. He endures it, pretends not express it, he does not want to be treated, it would seem he does not want to relent in relation to the physical manifestation of his responsibility for what he has done. He has reported mood and stress related problems and trauma type symptoms. He has low mood, suicidal ideation, I have mentioned that. It is tempered by thoughts of his own family. He has a constellation of symptoms consistent with PTSD but it is not a severe incidence. Understandably he has feelings of dread and apprehension as his sentencing date approaches.

    In relation to the events themselves all he could say about getting into the car was, “I don’t know, maybe I was thinking, I wasn’t that drunk”. He asserts he has no memory of speeding or driving recklessly. He does not recall colliding with the object on the road. Clearly he was dazed and injured by the collision and when reciting his best recollection to the psychologist he was tearful. Significantly, he said to the psychologist, “I admit I did something wrong. I feel sorry for the family. They must feel very, very sad and I gladly receive the punishment I deserve. If I could go back I would not drive”. That, through an interpreter, was confirmed as I indicated in his own evidence. He remains, as I say, untreated for PTSD.

    There were further documents provided by family members as well as work colleagues. None of those were provided with the intention of diverting the Court from recognition of what the offender has done, nor by their terms ignorant of the loss to other family members, virtually all of them indicated the writer’s profound regret and sympathy to those affected by what he had done. He is described variously as a wholesome human being, warm and caring, responsible, a mentor to new apprentices, a father figure, a man who feels real guilt about his actions. His sister-in-law says, “I’ve seen a big shift in this once prideful man, both mentally and physically.” His wife, understandably, after 40 years of marriage to a man she describes as a leader in a society amongst church members, with a strong sense of service, cannot imagine life without him.

    His pastor says it is difficult to see him struggling with such a guilty conscience. He has always been diligent in supporting his family, working from 4.30 in the morning and returning home late at night. It is within the church that this custodial term may well be significantly felt. He was part of the Milal Ministry. He served children with physical and mental disabilities in Sydney by providing them with lunch and interacting with the children and caring for them. He has done that work every Saturday for the last two years. He is a member of the Mercy Mission, which serves the local homeless and elderly population. He is a member of the Kitchen Ministry providing meals to those attending the Sunday Worship Service, those observations extend back to August 2008 when he joined the particular church, the Unitarian Church. When the church has special events and activities the offender assists.

    He has helped out with the local Lions Club over many years. He has organised events to raise awareness about local farms, especially drought affected farms in need of financial and social help. There is no doubt that it is evident to those who know this man he regrets and struggles through the incident. He is guilt ridden.

    He is noted by his family doctor that over many years as an active church member; he has made a significant contribution, and mention is made of the African Voluntary Missionary Team. The Lions Club of Strathfield, as I have indicated, note he is a member since 2004 not only involving himself but, “driving many fund raising activities, raising funds for the Children’s Hospital, drug awareness, national disaster relief”. He played a pivotal role in raising funds for the New South Wales drought appeal. Yet again consideration of the victims and insight as to what he has done is reflected in this testimonial as in all the testimonials provided. What is clear is that he has a substantial bank of good character from which to draw. He is well-liked and well-regarded. He has led a humble life focusing on family and work and engaged in community service efforts for years. So much is noted by his site foreman. All of it is evident in the consequence of his wrongdoing extend in all directions in affecting so many. I take all of those things into account.

    I have regard to the written submissions of both counsel, which I found very helpful, and their oral submissions. I accept the mitigating factors asserted on his behalf are present here. I have already indicated the plea, priors and character, there are no prior convictions. I give those two aspects such weight as I can, noting though that it is a typical factor in cases of this type. The driving record I consider is neutral. His remorse is genuine. It will affect him for the rest of his days.

    I have no doubt he is rehabilitated. There is absolutely no disordered personality. I am absolutely convinced he will never reoffend.

    It is acknowledged that the s 53 offence related to Mr Heuw does increase the totality of the offender’s criminality and clearly that, as a separate aspect, must be reflected in the sentence I impose. It is accepted there must be some degree of accumulation and I do that.

    I have had regard to a number of so-called comparative sentences; that is a blunt instrument, but they have been helpful and guided me in my considerations. At the end of the day, however, the offender will be sentenced for what he did.

    I should mention in passing that I also regarded the Sentencing Assessment Report which confirms almost entirely those matters said on his behalf by those who know him, but he stands to be sentenced for what he did.

    For the offence of driving in a manner dangerous occasioning death I impose a sentence of imprisonment consisting of a non-parole period of two years and seven months commencing from 14 November 2019 with a head sentence of four years and six months. For the offence of driving a vehicle furiously causing bodily harm I impose a sentence of imprisonment consisting of a non-parole period of seven months commencing from 14 June 2019, with a head sentence of ten months.

    It means that the overall effective sentence I impose consists of a non-parole period of three years commencing from 14 June 2019 and a head sentence of four years and six months which expires on 13 December 2023.

    The offender will be eligible to be released to parole on 13 June 2022. I find special circumstances; so much was not contested by the Crown. I find special circumstances on the basis of totality and the accumulation of sentences, that it is his first time in custody, that he has a supportive family and that he has a medical condition that will need continuing treatment. He is a man who is going to face a more difficult time in gaol because of his age and lack of facility in English and he is going to need some significant assistance in returning to the community.

    I will explain that sentence to you sir. Please stand.

    I have sentenced you to a total term of four years and six months. You will serve three years of that from today then you will be eligible to be released to parole, but not before 13 June 2022.

    SFINAS: Your Honour, two things; the disqualification period.

    HIS HONOUR: Now, in relation to the disqualification period, I am grateful for that. You will be disqualified from holding or applying for any licence under the Motor Transport Act for a period of 18 months from the date of your release.

    SFINAS: The back-up offences on the 166, they can be withdrawn.

    HIS HONOUR: Withdrawn and dismissed.”[15]

    [15] Ibid, G2, Attachment B1, pp 34-54.

1. In a report dated 21 February 2019 Mr Patrick Sheehan, forensic psychologist expressed an opinion regarding the Applicant. He relevantly states:

   “……

   Mr You is a 63-year-old South Korean man who is facing sentencing for one count of ‘Dangerous driving occasioning death – drive manner dangerous’, and one count of ‘Negligent driving (occasioning death) – 1^st offence’, pertaining to events in December 2017. He reports a large conventional personal history and his life in Australia over the past 20 years has been prosocial with all hallmarks of positive community adjustment. He does have a history of multiple speeding infringements but no other indications of recklessness to explain his poor decision to operate a motor vehicle on the day of the offences.

   Mr You acknowledges his offending and does not seek to minimise the significant of the harm by his actions. His expressions of remorse appear to be genuine. He reports symptoms in keeping with Post Traumatic Stress Disorder (PTSD), and certainly the events in question are of a sufficient magnitude of trauma to generate such a disordered stress reaction. His condition is untreated and there may be cultural factors involved in Mr You having not sought assistance. In terms of offender rehabilitation I can think of no available programs that would suit Mr You’s needs, beyond participation in a safe driver program. He has none of the characteristics associated with risk of reoffending (prior offending, substance use disorder, antisocial orientation, lifestyle instability, unemployment). His poor English skills are also a barrier to any program participation. Beyond deterrence, there is no apparent rehabilitative value to a custodial sentence.”[16]

   [16] Ibid, G2, Attachment G1, p 147.

2. On 24 December 2019, the Applicant lodged an appeal against the sentence imposed by the trial Judge.[17]

   [17] Exhibit 5, R22, pp 84-86.

3. On 15 April 2020, an appeal against his sentence was dismissed by the NSW Court of Criminal Appeal.  There was however a correction the effect that the Applicant was to be released on parole on 13 January 2020, not 13 June 2022.[18]

   [18] Exhibit 3, G2, Attachment B2, pp 55-79 and Exhibit 5, R23, p 87.

4. On 12 May 2020, the Applicant’s visa was cancelled by operation of s 501(3A) of the Act.[19]

   [19] Ibid, G2, Attachment L, pp 201-206.

5. On 3 June 2020, the Applicant lodged a request to the Minister to revoke the visa cancellation.[20]

   [20] Ibid, G2, Attachment D, pp 95-98.

6. On 3 December 2020, lawyers acting for the Applicant made lengthy submissions on his behalf.[21]

   [21] Ibid, G2, Attachment E1, pp 99-120.

7. On 1 March 2022, a pre-release report prepared by NSW Justice notes his positive behaviour in custody, and low risk of reoffending.[22]

   [22] Exhibit 5, R24, pp 88-94.

8. On 13 June 2022, the Applicant was released on parole and taken into immigration detention at Villawood.[23]

   [23] Exhibit 3, G2, Attachment C5, p 93, G2, Attachment G4, p 238 and G3, pp 164.

9. On 30 June 2020, the Minister’s Delegate refused to revoke the Applicant’s visa cancellation.[24]

   [24] Ibid, G2, Attachment 1, p 14, G2, Attachment 2, p 15-16 and G2, Attachment 3, pp 17-31.

10. On 4 July 2020, the delegate’s decision was communicated to the Applicant by letter.[25]

    [25] Ibid, G2, pp 11-13.

11. On 5 July 2020, the Applicant lodged an appeal with the AAT.[26]

    [26] Ibid, G1, pp 1-7.

12. On 18 August 2022, psychologist Patrick Sheehan produced a report on the Applicant, the summary, opinion and recommendations of which are as follows:

    “……

    Mr You reports a largely conventional personally history and his life in Australia over the past 23 years has been prosocial with all the hallmarks of positive community adjustment. He reports a history of solid psychosocial adjustment in domains of education, employment, stable residence, relationships and positive social engagement. There is evidence to support his account by way of reference and statements of other people in his life. He does have a history of multiple speeding infringments but no other indications of recklessness to explain his poor decision to operate a motor vehicle on the day of the offences. He has no history of prior criminality. His offence is not underpinned by a broader history of antisocial orientation or tendency towards recklessness/impulsivity/disregard for others. He has none of the characteristics associated with risk of reoffending (prior offending, substance use disorder, antisocial orientation, lifestyle instability, unemployment). As such, Mr You would be estimated to present a low risk of criminal offending when assessed against standard measures of risk, such as the Level of Service Inventory- Revise (LSI-R, Andrews and Bonta, 2001). This is consistent with assessments undertaken by CSNSW. This is also consistent with clinical impression, with Mr You presenting at the lowest end of the risk spectrum in terms of reoffending. He has clearly been profoundly and irrevocably affected by the catastrophic consequences of his reckless decision son 22 December 2017 and it is difficult to imagine the scenario that he would place himself in a similar situation in the future.

    I note the representations made by the minister’s delegate (30 June 2022; para 42) advancing the logic that because Mr You’s protective factors existed prior to his offences, this would diminish the protective value of these factors in the future, This represents a misunderstanding of risk assessment tools such as the LSI-R, in that these features were never intended to predict the index offence, but are based on follow up studies of the characteristics of offenders who went on to reoffend or not, over time in that cohort. The validity of those protective factors are not in any way diminished by being consistent over time, but in fact are made more compelling by their consistency.

    Visa cancellation has deleterious consequences for Mr You’s psychological well-being and that if his family, inevitably splitting the family unit in a harmful way. In my view the psychological harm generated through visa cancellation is greater than the remote risk of Mr You operating motor vehicle when intoxicated in the future.

    …… ”[27]

    [27] Exhibit 4, A1, pp 11-12, [24-26].

13. The Applicant’s mother and three brothers remain in South Korea. He owns some property there.

14. If the Applicant were to be released into the community, he plans to return to his former work and former life, with his wife and family in Australia.

15. Mrs Choi, the Applicant’s wife provided various statements.[28] In summary, she confirmed her extensive interaction with her grandsons. She stated that her eldest grandson, Child A, referred to the Applicant as “the No. 1 person in the whole world”. She wants to remain in Australia with her family and friends. She is an Australian citizen.[29] If the Applicant were deported, she would feel that she would have no option but to follow him back to South Korea. She fears the breakup of her family.

    [28] Exhibit 3, G2, Attachment H2, p 170 dated 2 December 2020, Exhibit 4, A4, pp 18-21 dated 28 August 2022 and Exhibit 5, R7, p 15 dated 13 March 2019.

    [29] Exhibit 3, G2, Attachment I1, p 184.

16. Mr Sung You, the Applicant’s son provided statements.[30] In summary his evidence was that his father was the “family leader”. He needs the Applicant’s help to be a father to his boys. His boys need to learn from the Applicant. He needs the support of his parents to manage his business and the children. The Applicant is very good with the boys. He plays with them and gets them anything that they need. He has taught Child A to speak, read and write in Korean. Child B was a bit young for this when the Applicant was imprisoned. If the Applicant were to be deported, he would have to close his café business, as he could not manage his boys without parental help. His wife’s parents are in South Korea. Even though he is an Australian citizen,[31] he would be obliged to move his wife and sons to South Korea.

    [30] Exhibit 3, G2, Attachment H3, pp 175-177 dated 2 December 2020 and Exhibit 4, A5, p 22 (undated).

    [31] Exhibit 3, G2, Attachment I2, p 185.

17. Mrs Kim is Mr Sung You’s wife. She provided statements.[32] In summary, her evidence was that her sons were both very close to the Applicant, particularly Child A. Both children have been regular visitors to see the Applicant during his incarceration.[33] Child B has had less time with the Applicant due to his age. All of her immediate family are still in South Korea. She is a permanent resident of Australia[34] and a South Korean citizen. It would be “unimaginable “for her boys to grow up without the Applicant. If he is deported, she agreed that the business would have to be closed and her family would have to return to South Korea. The business is such that they have no-one who can take it over. Mrs Kim has even considered hiring help to look after her children, but this is very hard in the current climate. The Applicant’s deportation would cause “tremendous change” in their lives. She does not want to relocate to South Korea.

    [32] Exhibit 3, G2, Attachment H4, pp 178-179 dated 2 December 2019 and Exhibit 5, R8, p 16 dated 14 March 2019.

    [33] See Exhibit 5, R27, pp 130-134.

    [34] Exhibit 3, G2, Attachment I4, p 187.

18. The Applicant’s criminal history is annexed hereto and marked “B”.

    LEGISLATIVE FRAMEWORK

    Does the Applicant Pass the Character Test?

19. The Applicant was sentenced by the District Court of New South Wales to 4 years and one month’s imprisonment commencing on 14 November 2019 with a non-parole period of two years and seven months enabling release on 13 June 2022, subject to supervision.[35]

    [35] Ibid, G2, Attachment A, pp 30-33.

20. The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.

    Is there another reason why the original decision should be revoked under section 501CA(4)?

21. In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[36]

    [36] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

22. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.

23. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to 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.

24. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

25. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

26. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests.

27. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[37]

    “…Direction 65 [now Direction 90] 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'. Direction 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 the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. 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.”[38]

    [37] [2018] FCA 594.

    [38] Ibid, [23].

    offending HISTORY

28. The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.

29. The Applicant’s offending is essentially limited to one very serious offence. His driving record between 1998 and 2016, is not perfect, but as observed by the sentencing Judge, it is hardly remarkable.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

30. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

31. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.

    The Nature and Seriousness of the Applicant’s Conduct to Date

32. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.

33. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

34. The Applicant’s offending is extremely serious. He caused the death of one person and serious injury to another. The impact this has had on the surviving victim and people close to the victims, has been enormous. His offending has shattered many lives, including his own.

35. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (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 upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.

36. Other than to observe that the Applicant does not pass the character test, this consideration is not relevant.

37. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.

1. The sentence imposed on the Applicant, as a first offender, was a significant indicator of just how serious his offending was.

2. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

3. Save and except for some relatively minor speeding offences in the past, the Applicant is only committed one serious offence. It is difficult to discern any trend as such.

4. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.

5. The effect of the Applicant’s offending on the surviving victim and the friends and family of his victims has been profound.

6. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

7. This consideration is not relevant.

8. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.

9. This consideration is not relevant

10. I do not consider factors (d), (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

11. Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

12. Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (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 time spent in the community since their most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

13. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

    Likelihood of engaging in further criminal or other serious conduct

14. Having regard to all of the evidence and the comments of Judge Turnbull in the District Court of New South Wales to the effect that:

    “I have no doubt he is rehabilitated. There is absolutely no disordered personality. I’m absolutely convinced he will never reoffend.”

15. I have come to the view that the Applicant presents a very remote risk of reoffending.

    Conclusion: Primary Consideration 1

16. In this instance, the harm that might be done if the Applicant were to re-offend, could be catastrophic. On the other hand, the chance of this happening is, in my view very remote.  Primary consideration number one, on balance, weighs slightly against revocation of the Applicant’s visa cancellation.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

17. Paragraph 8.2 of the Direction provides:  

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2)This consideration is relevant in circumstances where:

    a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

    (3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

    b)the cumulative effect of repeated acts of family violence;

    c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    i.the extent to which the person accepts responsibility for their family violence related conduct;

    ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    iii.efforts to address factors which contributed to their conduct; and

    d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

18. There is no evidence of such conduct.

    Conclusion: Primary Consideration 2

19. This consideration is neutral.

    Primary Consideration 3: The best interests of minor children in Australia

20. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

21. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    ·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    ·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    ·     whether there are other persons who already fulfil a parental role in relation to the child;

    ·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    ·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    ·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

22. The relevant minor children in Australia are the Applicants two grandsons, aged 11 (“Child A”) and 6 (“Child B”). They are his sons’ children. They are Australian citizens. They were born here. Their parents are fully committed to running their café business. This is a heavy burden. The business is open from Tuesday to Sunday every week. The working day starts at 7 to 7:30 AM each day, and after closing at about 2:30 PM and cleaning up, finishing at 3 to 3:30 PM.

23. The boys spend the weekend days with their grandmother. The Applicant and his wife, although not the boys’ parents, are very significant carers. They have been highly engaged with the boys. The Applicant’s contact has obviously been limited of recent years by reason of his incarceration, but the pattern of his wife’s conduct has continued. Even during his imprisonment, and despite the challenges presented by COVID, their contact has continued to be close and regular. If he were returned to the community, he would return to having an intense, positive relationship with the boys. The Tribunal was told that in Korean culture, the role of grandparents is very significant, with them being the primary transmitters of culture and values. In this context, given that the boys maternal grandparents are in South Korea, the role of the Applicant is very significant.

24. If the Applicant were to be deported, a cascading series of consequences seem likely to follow. These may well see the boys, who are Australian citizens, ripped from all that is familiar to them, and removed to South Korea, along with their parents and grandparents.

25. The general position for both boys in similar, but there are some differences.

26. “Child A” is the Applicant’s grandson. He is 11 years of age. He had much more time with the Applicant before he was imprisoned. He is especially close to the Applicant. He has learned the Korean language from him. He is a central figure in Child A’s life.

27. “Child B” is the Applicant’s grandson. He is 6 years of age. He is also very close to the Applicant, but due to his age, he has had less of an opportunity to spend time with him. If the Applicant were released to the community the Applicant would convey important cultural information and teach him the Korean language, like his older brother. At present, Child B would struggle with the Korean language if he moved to South Korea.

28. Having regard to all of the above, primary consideration 3 weighs heavily in favour of revocation of the Applicant’s visa cancellation.

    PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

29. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

30. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)acts of family violence; or

    (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)worker exploitation.

31. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

32. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

33. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[39]

    [39] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

34. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

    Analysis – Allocation of Weight to this Primary Consideration 4

35. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

    (a)the Applicant’s criminal record as set out in Annexure B.

    (b)The Applicant’s good character and positive contribution to Australian society prior to his offending on.

    (c)The other matters set out above.

    Conclusion: Primary Consideration 4

36. Primary consideration 4, on balance weighs slightly against revocation of the cancellation of the Applicant’s visa.

    Other Considerations

37. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

    (a) International non-refoulement obligations

38. This is not relevant.

39. This consideration is neutral.

    (b) Extent of Impediments if Removed

40. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

41. The Applicant is now 66 years of age. He does have some health issues, some relating to the consequences of the motor vehicle accident. He has been diagnosed as suffering from PTSD. He suggested in his evidence that he may have difficulties in obtaining health insurance in South Korea. No evidence was led in support of this suggestion. South Korea is an advanced country and there is no evidence before the Tribunal to suggest that the standard of health care there is materially inferior to that in Australia.

42. Given that the Applicant did not come to Australia until he was 42 years of age, there are no language or cultural barriers that would present a difficulty to him if he were to be returned to South Korea. His mother and 3 brothers live there. He still had close friends there. His daughter lives there.

43. The Applicant’s wife, son, daughter in law and grandsons are all resident in Australia. If he were deported, it is highly likely that they would all follow him there. He has a network of friends in Australia, some associated with the Korean church. There is no doubt that if he were to be returned to South Korea, he would suffer emotional consequences. It would be highly disruptive of his life. His wife would accompany him back to South Korea, against her preferred wishes, so probably would his son, daughter-in-law and grandchildren.

44. The Applicant does have family and friends in South Korea and would have the capacity to engage with those networks. The social medical and economic support available to the Applicant is a citizen of South Korea would not be enormously different to that available to him in Australia.

45. This consideration is weighs moderately in favour of revocation. Much of what connects the Applicant to Australia would probably move with him.

    (c) Impact on victims

46. This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

47. There is no evidence specifically about the impact of the Applicant removed a or otherwise on any victims.

48. This Other Consideration (c) is neutral.

    (d)     Links to the Australian Community

49. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

1. The Applicant has strong links to the Australian community through his family, his employment and his association with Korean church. Full particulars are set out in the sentencing remarks of the Judge Turnbull above.[40]

   [40] Exhibit 3, G2, Attachment B1, pp 34-54.

2. As has already been observed, but for one catastrophic and still inexplicable incident, the Applicant has conducted himself in an overwhelmingly positive fashion as a member of our community.

3. I not that the NSW Corrective Services records of offender visits show a steady stream of friends and relatives visiting him in prison between 22 June 2019 and 14 May 2022. I note also that COVID restrictions would have made visits more difficult for much of this time.[41]

   [41] Exhibit 5, R27, pp 130-134.

4. The removal of the Applicant to South Korea would devastate and upend the lives of Australian citizens including his wife, his son and his grandchildren. It would do the same to his daughter in law, who is a permanent resident.

5. This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs heavily in favour of revocation.

   Impact on Australian business interests

6. There was no evidence on this topic so this consideration is neutral.

7. This Other Consideration (d), paragraph 9.4.2 of the Direction, is neutral.

   Findings: Other Considerations

8. The application of the Other Considerations in the present matter can be summarised as follows:

   (a)international non-refoulement obligations: neutral

   (b)extent of impediments if removed: weighs moderately in favour of revocation.

   (c)impact on victims: neutral.

   (d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs heavily in favour of revocation; and

   (e)the impact on Australian business interests: neutral

   CONCLUSION

9. It is necessary to weigh up all of the primary and other considerations.

10. Primary consideration 1 weighs slightly against revocation.

11. Primary consideration is neutral.

12. Primary consideration 3 weighs heavily in favour of revocation.

13. Primary consideration 4 weighs slightly against revocation.

14. Other considerations, (a), (c) and (e) are neutral.

15. Other consideration (b) weighs moderately in favour of revocation.

16. Other consideration (d) weighs heavily in favour of revocation.

17. In my view, the proper application of the Direction favours the Tribunal exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.

    Decision

18. The decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked.

I certify that the preceding one hundred and one hundred and twenty-one (121) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

.......................[sgnd]........................................

Legal Administrative Assistant

Dated:   15 September 2022

Date of hearing:

5 and 6 September 2022

Advocate for the Applicant:

Mr Simon Jeans

Jeans Lawyers

Advocate for the Respondent:

Mr Edwin Taylor

Mills Oakley Lawyers

Annexure A – List of Exhibits

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues and Contentions filed 8 August 2022
2	Respondent	Statement of Facts, Issues and Contentions filed 24 August 2022
3	Respondent	G-Documents filed 19 July 2022
4	Applicant	Tender Bundle filed 30 August 2022
5	Respondent	Tender Bundle filed 24 August 2022

Annexure B – Applicant’s Offending History

Court	Court Date	Offence	Court Result
Parramatta District Court	14/06/2019	Dangerous driving occ death-drive manner dangerous-SI	Imprisonment: 4 years and 1 month
Parramatta District Court	14/06/2019	Drive furiously in m/v do/cause bodily harm-T1	Imprisonment: 10 months