FEDERAL COURT OF AUSTRALIA

Kim v Minister for Immigration and Border Protection [2017] FCA 372

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

introduction

1    On 24 August 2016 the applicant, Mr Kim, commenced a proceeding in the Federal Circuit Court of Australia (Federal Circuit Court) seeking judicial review of a decision made by the respondent (Minister) not to revoke the decision made by the Minister’s delegate to cancel Mr Kim’s Class BU Subclass 836 Carer (Permanent) visa (Visa) under s 501(3A) of the Migration Act 1958 (Cth) (Act).

2    On 9 September 2016, by consent, the Federal Circuit Court made an order transferring Mr Kim’s application for judicial review of the Minister’s decision to this Court.

Legislative scheme

3    Sections 501 and 501CA of the Act are relevant to the decision which is the subject of this proceeding. Subsection 501(3A) relevantly provides:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

…     and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

4    Subsections 501(6)(a) and (7) of the Act relevantly provide:

(6)     For the purposes of this section, a person does not pass the character test if:

(a)     the person has a substantial criminal record (as defined by subsection (7)); or

…

(7)     For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

5    Section 501CA concerns the Minister’s power to revoke a decision to cancel a visa made under subs 501(3A). It relevantly provides:

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)     This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)     For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

(a)     would be the reason, or a part of the reason, for making the original decision; and

(b)     is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)     As soon as practicable after making the original decision, the Minister must:

(a)     give the person, in the way that the Minister considers appropriate in the circumstances:

(i)      a written notice that sets out the original decision; and

(ii)     particulars of the relevant information; and

(b)     invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)     The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

(b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

…

background facts

6    Mr Kim first entered Australia in February 1996 on a visitor visa, staying until December that year. On 4 August 2008, aged 46, Mr Kim returned to Australia. On 3 November 2008 Mr Kim applied for the Visa so that he could remain in Australia to care for his mother, an Australian citizen. On 24 April 2012 Mr Kim was granted the Visa.

7    On 12 March 2015 Mr Kim was convicted of two counts of the offence “Stalk/Intimidate Intend fear physical etc harm (domestic)” in the Local Court of New South Wales (Local Court) at Burwood. He was sentenced to 12 months’ imprisonment for each conviction, to be served concurrently, with a non-parole period of 3 months in each case.

8    On 28 May 2015 the Visa was cancelled under s 501(3A) of the Act (Original Decision). This was because, based on the evidence, the Minister’s delegate was satisfied that Mr Kim did not pass the character test as set out in s 501 of the Act. The letter notifying Mr Kim of the Original Decision (May 2015 Letter) provided that the Minister’s delegate was satisfied that Mr Kim did not pass the character test on the following ground:

You have a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c) of the Act. Under s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 12 March 2015 you were convicted of Stalk/Intimidate Intend Fear Physical Etc Harm (Domestic) and sentenced to 12 months imprisonment.

9    The May 2015 Letter also informed Mr Kim:

(1)    that he had an opportunity to request that the Original Decision be revoked;

(2)    that the Original Decision may be revoked by the Minister under s 501CA(4) of the Act if:

(a)    Mr Kim made representations about the possible revocation of the Original Decision; and

(b)    the Minister was satisfied that Mr Kim passed the character test (as defined in s 501 of the Act) or there was another reason why the Original Decision should be revoked;

(3)    how he should proceed should he wish to request revocation of the Original Decision. The letter enclosed a Revocation Request Form and a copy of Direction 65 titled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction);

(4)    in relation to the Direction, that if the decision-maker were a delegate of the Minister then he or she must follow the Direction. But that if the Minister made a revocation decision personally then he would not be bound by the Direction, although the Direction provided a broad indication of the types of issues the Minister was likely to take into account in making his decision; and

(5)    of the timeframe within which he needed to make any representations for revocation of the Original Decision.

10    Finally, the May 2015 Letter enclosed:

(a)    a National Police Certificate dated 7 May 2015; and

(b)    a Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 17 March 2015.

11    Mr Kim submitted the Revocation Request Form under cover of a letter dated 18 June 2015 from his solicitors to the Department of Immigration and Border Protection (Department). In the completed form Mr Kim requested that the Minister revoke the Original Decision and included in Part A of the form, titled “Reasons for requesting revocation”, the following:

1.    Our client’s criminal record is at the low end of the scale. His assault conviction resulted in a one month jail sentence.

2.    He has reunited with his wife following this incident. His wife is now supporting him and visiting him in detention.

3.    Mr Kim is addressing his alcohol problems and is willing to undertake counselling and alcohol education with rehabilitation officers.

4.    Mr Kim is the sole carer for his elderly mother. Please refer to the report of Dr Won Hyun Baik attached.

Further detailed submissions will be made on Mr Kim’s behalf.

12    On 26 June 2015 Mr Kim’s solicitors provided a reference dated 10 January 2014 from Rev Dr Beom Seok Kim of the Sydney Full Gospel Church in support of Mr Kim’s application for revocation. On 7 August 2015 Mr Kim’s solicitors wrote a further letter to the Department making representations about Mr Kim’s carer relationship to his mother and requesting that his mother’s circumstances be considered.

13    On 28 October 2015 Mr Kim’s solicitors sent an email to the Department noting, among other things, that:

2.    Our client served one month in prison for assault and stalking charges.

3.    This is considerably less than the 12 months jail sentence that your office has been using to cancel visas on character grounds.

4.    Our client does not meet the criteria of having spent 12 months in jail nor having a substantial criminal record.

14    On 28 October 2015 the Department responded by email to Mr Kim’s solicitors. In its email the Department referred to the National Police Certificate provided to Mr Kim with the May 2015 Letter, noting that it disclosed convictions resulting in a sentence of imprisonment of 12 months such that Mr Kim “fails the character test as specified in s 501”. The email queried whether there was any information about changes to sentences noted in the National Police Certificate, particularly as a result of an appeal.

15    On 3 November 2015 Mr Kim’s solicitors again wrote to the Department saying, among other things, the following:

1.    Mr Kim was sentenced to 12 months imprisonment on 12.03.15.

2.    The sentence states he was to be paroled after 3 months expiring 01.06.15

3.    The Fixed sentence was one month only – to be released on 01.04.15. Mr Kim was paroled on 1st June 2015 serving 3 months in jail as per the Magistrates (sic) Order.

4.    Mr Kim does not have a substantial criminal record. He has only served 3 months jail as per the Magistrate Order.

We submit Mr Kim does not meet the mandatory conditions for cancellation of his visa under s 501(3A). Please review this matter and advise.

(original emphasis)

16    Mr Kim’s solicitors provided a submission dated 26 February 2016 to the Department in support of the request for revocation of the Original Decision.

17    On 8 March 2016 the Department wrote to Mr Kim care of his solicitors enclosing further information, namely the sentencing remarks in the Local Court at Burwood made on 21 March 2015, noting that those remarks may be taken into account when making the decision whether to revoke the Original Decision under s 501CA of the Act. Mr Kim was invited to provide any response to that information.

18    On 17 March 2016 Mr Kim’s solicitors responded to the Department’s letter dated 8 March 2016.

19    On 21 June 2016 the Minister decided under s 501CA(4) of the Act not to revoke the Original Decision. Mr Kim was notified of the Minister’s decision by letter dated 26 July 2016 addressed to his solicitors.

20    The Court book tendered by the Minister at hearing, which became exhibit A in the proceeding, did not make clear what was provided to Mr Kim with the letter dated 26 July 2016. In order to clarify what was provided with that letter I ordered the Minister to file and serve a copy of the letter and its enclosures. As a result of the material filed in compliance with that order it was evident that the decision not to revoke the Original Decision comprised only the decision record and the Minister’s statement of reasons for decision under s 501CA of the Act not to exercise his discretion to revoke a mandatory cancellation visa decision under s 501(3A) (Statement of Reasons).

21    At the hearing I also ordered the Minister to file and serve any issues paper provided to him which was not included in exhibit A. In compliance with that order a document titled “Submission for Decision” with attachments was filed.

the Minister’s decision

22    The Minister’s Statement of Reasons was before the Court. In it the Minister first found that he was not satisfied that Mr Kim passed the character test as defined in s 501 of the Act. Accordingly, s 501CA(4)(b)(i) of the Act was not met.

23    The Minister then turned to consider whether he was satisfied that there was another reason why the Original Decision should be revoked as set out in s 501CA(4)(b)(ii) of the Act. In undertaking this task, the Minister assessed all of the information set out in the attachments to the Statement of Reasons and, in particular, considered Mr Kim’s representations and the documents he submitted in support of his representations. The Minister noted that, in summary, Mr Kim said that he was sponsored to come to Australia by his elderly mother as her sole carer; he had no family or support in the Republic of Korea; he suffered from alcohol abuse issues which he was continuing to address; both he and his mother would experience undue hardship if he were removed from Australia; the parole board granted him parole; and Mr Kim had stated his intention not to reoffend.

24    The Minister considered the strength, nature and duration of Mr Kim’s ties to Australia, noting that Mr Kim commenced residing in Australia on 4 August 2008 as an adult aged 46; that Mr Kim’s mother, former spouse and step-daughter resided in Australia; that he was the sole carer of his mother, a then 79 year old Australian citizen who had no other family members in Australia; that non-revocation would cause Mr Kim’s elderly mother to “suffer greatly” and her “quality of life” to diminish upon her son’s removal, causing her emotional and practical hardship; and that his relationship with his spouse of one year and his adult step-daughter with whom he did not live and who were not dependent on Mr Kim would be affected. The Minister also noted that Mr Kim’s former spouse and step-daughter had not provided letters to the Department. The Minister concluded that Mr Kim’s familial ties in Australia were particularly strong and that he has social ties to the Australian community.

25    The Minister also considered the impediments that Mr Kim would face if removed from Australia to his home country, the Republic of South Korea (South Korea), in establishing himself and maintaining basic living standards. The Minister considered that Mr Kim was then a 54 year old man who had resided in Australia for nearly eight years; that Mr Kim suffered from alcohol abuse issues; that he required dental treatment; that he had no family in South Korea; that a return to South Korea would aggravate his alcoholism; and that his removal from his mother in Australia and lack of support in South Korea may cause him to experience some emotional and practical hardship, particularly in relation to accommodation and employment. The Minister concluded that if Mr Kim was removed from Australia he would not face significant cultural or language barriers in South Korea, but that he was likely to suffer hardship and that his psychological health may deteriorate in view of his alcoholism and lack of family support.

26    Finally, the Minister considered the protection of the Australian community. After reviewing the nature of his criminal offending, the sentence that was imposed and Mr Kim’s prior criminal history in Australia, the Minister found that Mr Kim’s offending relating to domestic violence was very serious and that the cumulative effect of his drink driving offending was serious.

27    In the context of considering risk to the Australian community, the Minister had regard to the remarks of the sentencing magistrate concerning Mr Kim’s alcoholism and the submissions of Mr Kim’s representatives that he had undertaken alcohol rehabilitation; that Mr Kim had “learnt his lesson”; that there was “little likelihood” of Mr Kim reoffending; that the offending was situational; and that, as he was now separated from his spouse, he does not pose a threat to any Australian citizen or the community. The Minister also had regard to Mr Kim’s early guilty plea as an expression of remorse for his offending behaviour and to the fact that he had not sought to excuse his conduct or to appeal the severity of the sentence. The Minister took into account that Mr Kim had one recorded breach of a judicial order, namely, contravening an apprehended domestic violence order, which the Minister found constituted a disregard for Australian laws.

28    The Minister noted that, while Mr Kim had clearly indicated his intention to lead a law abiding lifestyle, his ability to refrain from alcohol use, which was linked to his offending, was untested in the community. The Minister found that if that risk were to eventuate then “great harm could flow to a member or members of the Australian community” and that any reoffending by Mr Kim could result in psychological, mental or physical harm to a member or members of the Australian community.

29    The Minister concluded that he was not satisfied for the purposes of s 501CA(4)(b)(ii) that there was another reason why the Original Decision should be revoked. Although the Minister considered Mr Kim’s eight year period of residence in Australia, his positive contribution to the Australian community in the form of providing care for his mother and the consequences of the decision for Mr Kim and his elderly mother, the Minister gave significant weight to the very serious nature of the crimes committed by Mr Kim. In that regard the Minister found that the Australian community could be exposed to harm should Mr Kim reoffend in a similar fashion and that he could not exclude the possibility of further offending by Mr Kim.

the applicant’s grounds of review

30    In his application filed in the Federal Circuit Court, which is before this Court for consideration, Mr Kim advances the following grounds, as written:

1.    Decision made on assumptions.

2.    No consideration given to 15 months in detention as rehabilitation successfully achieved.

3.    No consideration to the remorse felt by applicant and the effect of the decision to other Australian citizens (mum, wife) who would like to project support and forgiveness for the past.

4.    Already spent time in jail & then detention is like having two sentences.

5.    Section 501 states 12 months imprisonment but spent less than that. An error in judgement as per law.

31    Mr Kim relied on an affidavit sworn or affirmed (it is not clear which) on 23 August 2016 in support of his application for judicial review. The affidavit annexes a copy of the Minister’s decision not to revoke the Original Decision as well as letters dated 16 August 2016 from Mr Kim’s mother and wife and a letter from his step daughter dated 17 August 2016.

32    Mr Kim did not file any written submissions in support of his application but made oral submissions at the hearing which broadly fell into two categories. The first related to ground 5 in Mr Kim’s application and an alleged error in the Minister’s finding as to “substantial criminal record” and the second related to what I will broadly describe as Mr Kim’s remorse and his mother’s situation. Those submissions are considered below.

consideration

Ground 1

33    In ground 1 Mr Kim claims that the Minister made his decision on the basis of “assumptions”. The ground is not particularised and it is not clear to what assumptions Mr Kim refers. As framed ground 1 does not raise a proper ground of review. However, the Minister submitted that ground 1 could be understood as a complaint that the Minister made his decision in the absence of evidence. Even on that basis ground 1 cannot succeed.

34    It is clear that the Minister had regard to the submissions made on behalf of Mr Kim, including material provided by his representative to the Department and evidence in relation to Mr Kim’s time residing in Australia and in relation to his criminal history. The Minister referred throughout the Statement of Reasons to the submissions that were made and the evidence provided. As submitted by the Minister, he made findings in relation to that material and in relation to the evidence that was before him. Those findings were open to the Minister for the reasons he gave.

Grounds 2 and 3

35    In grounds 2 and 3 Mr Kim alleges that the Minister failed to consider a number of factors, namely:

    his time spent in detention;

    his rehabilitation;

    his remorse; and

    the effect of the decision on other Australian citizens: his mother and his wife.

36    A review of the Minister’s decision demonstrates that it is not the case that the Minister failed to consider these matters:

    at [58] and [63] of the Statement of Reasons the Minister considered Mr Kim’s time spent in detention;

    at [50]-[52] of the Statement of Reasons the Minister considered Mr Kim’s undertaking an alcohol rehabilitation program;

    at [53] and [63]-[64] of the Statement of Reasons the Minister considered Mr Kim’s remorse; and

    at [21]-[23] of the Statement of Reasons the Minister considered the effect of the decision on Mr Kim’s mother, wife and step-daughter.

37    Grounds 2 and 3 cannot succeed. They are an invitation to engage in merits review and should be dismissed.

Ground 4

38    In ground 4 Mr Kim says that he has spent time in jail and in detention and that is “like having two sentences”. As framed, this ground is no more than a statement by Mr Kim of his sense of the effect of his time in immigration detention. It does not raise a proper ground of review capable of establishing any legal error on the part of the Minister.

Ground 5

39    By ground 5 Mr Kim asserts that s 501 of the Act requires 12 months “imprisonment” but that he was imprisoned for “less than that” and that there is “[a]n error in judgment as per law”. In his oral submissions Mr Kim contended that he only served three months of a one year sentence. He said that the reason for the cancellation of the Visa was because he was in prison for 12 months, which was not the case, an extra nine months having been added.

40    This ground amounts to a claim that the Minister made an error in finding that Mr Kim did not pass the character test as set out in s 501 of the Act in circumstances where, as a matter of fact, Mr Kim had spent less than 12 months in jail. But Mr Kim has misconstrued s 501 of the Act. Section 501(3A) of the Act requires the Minister to cancel a visa where the visa holder is found not to pass the character test because, relevantly, he or she has a substantial criminal record as set out in ss 501(6)(a) and (7)(c) of the Act. Section 501(6)(a) of the Act provides that a person does not pass the character test if that person has a substantial criminal record. In turn, the term substantial criminal record is defined in s 501(7)(c) as including where a person has been “sentenced to a term of imprisonment of 12 months or more” (emphasis added). That is, the section speaks in terms of the duration of the sentence, not in terms of the time spent in jail or the time actually served.

41    In this case, the evidence before the Minister, as recorded in the National Police Certificate and the sentencing remarks of the magistrate, neither of which was disputed by Mr Kim, showed that Mr Kim was sentenced to a term of imprisonment of 12 months for each of two offences of “Stalk/Intimidate Intend fear physical etc harm (domestic)” to be served concurrently. Accordingly, there was no error in the Minister’s consideration of the sentence imposed on Mr Kim and his application of the facts to s 501(3A) of the Act. On the basis of the sentence imposed, the only finding open to the Minister was that Mr Kim had a substantial criminal record for the purposes of s 501(6)(a) of the Act. Accordingly, this ground fails.

Other grounds

42    As noted above, Mr Kim made submissions at the hearing which concerned his mother’s health, her lack of mobility and her reliance on him to live her life day to day. Mr Kim reiterated his remorse for what he has done and sought the Court’s forgiveness. These submissions did not identify any jurisdictional error in the Minister’s decision not to revoke the Original Decision. In making them Mr Kim sought merits review, which this Court cannot undertake. Similarly, the letters annexed to Mr Kim’s affidavit, which post-date the Minister’s decision and thus were clearly not before the Minister at the time he made his decision, can have no bearing on that decision. They are not relevant to the identification of any error in the Minister’s decision the subject of Mr Kim’s application for judicial review and once again are an attempt at impermissible merits review.

43    The final issue to consider is whether there is an error of the type identified in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 (Tesic). The Minister, having raised the issue, submitted that there was no such error. I accept that submission.

44    In Tesic Collier J observed that in the statement of reasons before her the Minister referred to the “principle” that persons who commit serious crimes should expect to forfeit the “privilege” of remaining in Australia a number of times. Her Honour said at [55]-[56]:

55    I do not accept that the statements of the Minister in respect of “privilege” in this case could properly be confined to rhetoric expounding the relevant considerations concerning Mr Tesic’s criminal history and the importance of protecting the Australian community.

56    The fact that the Minister “took into consideration” that remaining in Australia is a privilege that Australia confers on non-citizens indicates that the decision-making process was distorted. The “principle” coloured the Minister’s reasoning process. The Minister approached the decision from that perspective. As was explained by the Full Courts in both Stretton [2016] FCAFC 11 and AZAFQ [2016] FCAFC 105, that perspective was not correct. The fact that the Minister subsequently repeated the statement concerning privilege in paragraph 55, elevating it to a “principle”, reinforces the point that the Minister attributed importance to this irrelevant consideration in reaching his decision.

(original emphasis)

45    In this case the Minister only referred to the “privilege” of remaining in Australia once in the Statement of Reasons where at [33] he said:

In coming to my decision about whether or not there is another reason why the original decision should be revoked I have had regard to the consideration of the protection of the Australian community, noting in particular Mr KIM’s claim that he does not pose an unacceptable risk of reoffending, will not re-offend and has made progress towards rehabilitation. I considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. I also took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding.

(emphasis added)

46    In doing so the Minister did not elevate the “privilege” to a principle of law or attribute importance to it in the manner found by the Court in Tesic. Rather the Minister did no more than identify a statement of policy or a statement of what someone in Mr Kim’s shoes might expect: see Tupkovic v Minister for Immigration and Border Protection [2017] FCA 73 at [33] (per Robertson J) and Wozniak v Minister for Immigration and Border Protection [2017] FCA 44 at [110] (per Burley J).

47    As a result of the orders I made requiring the Minister to file and serve further evidence I also reserved to the parties the right to apply to relist the matter for further argument should that be required because of that material. Neither party applied to have the matter relisted. For completeness I note that nothing in that material causes me to change the views I have expressed above.

conclusion

48    For the reasons set out above, Mr Kim has failed to make out any of the grounds in his application for review or to identify any error in the Minister’s decision not to revoke the Original Decision. It follows that the application should be dismissed and Mr Kim ordered to pay the Minister’s costs as agreed or taxed. I will make orders accordingly.

Associate:

Dated:    13 April 2017