Park and Minister for Immigration and Citizenship [2011] AATA 17 (19 January 2011)

Last Updated: 19 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 17

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2010/4821

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SOOBEOM PARK

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Ms N Bell, Senior Member

Date 19 January 2011

Place Sydney

Decision

The decision under review is set aside. Instead the Tribunal decides that the discretion to refuse Mr Park’s application for a visa should not be exercised.

...................[sgd].......................................
Ms N Bell, Senior Member

CATCHWORDS – Citizenship – cancellation of visa – not of good character - substantial criminal record - protection of the Australian community – family ties and relationships – hardship

Migration Act 1958

REASONS FOR DECISION

Ms N Bell, Senior Member

1. Soobeom Park is a citizen of South Korea, born on 17 September 1959.
   Mr Park first arrived in Australia on 6 March 2008 on a tourist visa. He is now detained at Villawood Detention Centre following the Minister’s decision to refuse his application for a partner visa, as the partner of Australian citizen Jun Hee Choi, on the grounds that Mr Park did not satisfy the character test set out in section 501 of the Migration Act 1958.
2. Mr Park was convicted of murder in 2001 by the Seoul High Court after stabbing his then wife. He was sentenced to eight years imprisonment. He received a pardon after serving seven years.
3. Section 501(2) of the Act provides that the Minister may refuse a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”. “Substantial criminal record” is defined in section 501(7) of the Act as, among other things, having been sentenced to a term of imprisonment of 12 months or more. There is no dispute that in 2001
   Mr Park was convicted of murder and was sentenced for a term greater than 12 months. It therefore follows that he does not pass the character test.
4. The discretion of the Minister to refuse Mr Park’s visa is thus enlivened. In exercising the discretion, the decision maker must apply Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501 of the Act. This Direction superseded Direction 21 and came into effect on 15 June 2009. The Direction contains a number of “primary” and “other” considerations to which the decision maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
5. The primary considerations in the Direction are:
   10. The primary considerations
       • (1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
         • (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
         • (b) whether the person was a minor when they began living in Australia;
         • (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
         • (d) relevant international obligations, including but not limited to:
           • (i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
           • (ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
             
6. These considerations are elaborated on by a range of factors to which regard must be had. The additional “other” considerations contained in the Direction are indicated by the headings that appear below.

PRIMARY CONSIDERATIONS

7. The primary consideration most relevant to Mr Park’s circumstances, given his conviction for a violent crime, is the protection of the Australian community. None of Australia’s international obligations arise in Mr Park’s circumstances, although I note that Mr Park is the father of three children under 18. Mr Park’s children are Korean citizens and reside in Korea. Mr Park himself is not a minor.

PROTECTION OF THE AUSTRALIAN COMMUNITY

8. The Direction provides further guidance to decision makers in assessing the level of the risk of harm to the community by identifying as factors relevant to that assessment the seriousness and nature of the conduct and the risk that the conduct may be repeated.
9. There is no dispute that Mr Park’s crime was serious by any standard. He murdered his wife by stabbing her.
10. The circumstances of the crime, as described by Mr Park, were as follows.
    Mr Park and his then wife had been married for 20 years and had four children.
    Mr Park worked away from home often. His wife ran a restaurant. On the day before the murder, he had returned from a business trip and stayed in a hotel with his wife near the restaurant in order to discuss some issues between them including some financial issues and a rumour that Mr Park’s wife had been having an affair. Mr Park said they reached an agreement to move on and “try to live a better life”. He said the next day things went well and they shopped and worked together in the restaurant, although he complained to his wife that evening that the restaurant was very messy and this upset her. He said that later in the day some friends of his visited the restaurant and he drank with them. He said his wife sat at another table with their 18 year old daughter, drinking.
11. Mr Park said that when his friends left he asked his wife why she was drinking in front their daughter and, with his wife still smarting from his comment about the mess in the restaurant, they began to quarrel. He said he was particularly upset because they had talked about a range of matters the night before and he thought they were reconciled.
12. Mr Park said his wife then called someone on her mobile phone and he suspected it was her lover. She then announced that she was going out to see a friend. It was 2.00 am. Mr Park struggled with her but she left the restaurant to hail a taxi. He said he got her back inside and as he was passing the kitchen he put a small knife in his pocket. He said his intention was to threaten her. Then his wife said she wanted to end the marriage.
13. Mr Park said he lost control and grabbed her when she stood up to leave again and stabbed her twice in the chest and stomach area. He said that when his wife fell to the ground he felt immediate regret and tried to kill himself by stabbing himself in the abdominal area. He was taken to the hospital with his wife. She died soon after and he was in hospital for two months and had three operations.
14. Mr Park said there had been no violence in their relationship prior to the murder. His daughter was present throughout the argument, the murder and the attempted suicide. Mr Park said he suffered great shame and regret for what he had done.
15. There is no dispute that Mr Park’s initial sentence of 10 years was reduced to eight years on appeal and that he was released from prison after he served seven years because of his “exemplary” conduct while in gaol. Documents from prison authorities indicate that he was indeed an exemplary inmate. Mr Park said that in his seventh year in prison he was allowed to work outside the gaol, travelling by bus each day to get to work. He said that when in prison he spoke regularly with a psychologist about the murder and why it had happened. He said he spent a long time in prison thinking and crying about what had happened and learned strategies for dealing with his anger.
16. I am mindful that, since arriving in Australia, Mr Park has worked steadily as a skilled welder, providing financial support to his now wife and to his three children living in South Korea. I note that his work has generally been outside the Sydney area.
17. There is no evidence of any other violent or unlawful behaviour by Mr Park before or after the murder. It was urged on me to view the murder as an isolated event, a “crime of passion”. I am inclined to do so. While it is clear that Mr Park has shown himself to have the capacity to commit extreme violence, there is no evidence to suggest he has a general tendency to do so or that he is likely to do so in the future. The Minister noted that the same conditions apply now as did when Mr Park committed the crime: he has a wife and he is away from her for long periods while he is at work in remote locations. I am mindful of this. However, Mr Park has had almost a decade to reflect on his action. His remorse is evident and his behaviour since then has been constructive and lawful. I am also mindful of the evidence that Mr Park informed his current wife of this history not long after they commenced their relationship. It was also submitted on Mr Park’s behalf that while there will always be a risk of repetition after the commission of a serious crime, the risk to be avoided according to paragraph 5.1 of the Direction is an “unacceptable risk”.
18. On various arrivals in Australia, Mr Park incorrectly stated on his passenger arrival card that he had no criminal convictions. Mr Park said that the reason for this was the shame he felt about the crime. On one occasion, Mr Park’s arrival card was filled out by Ms Choi who also did not disclose that he had a criminal conviction. When asked about this, Ms Choi said that she had someone looking over her shoulder and was embarrassed. I note, however, that Mr Park disclosed his criminal conviction on his visa application and did not attempt to deceive the Minister.
19. I consider that the risk of the crime, or other violent behaviour, being repeated is remote. I consider that it does not pose a risk that is unacceptable or that should weigh more than minimally against grant of a visa.

WHETHER A MINOR WHEN BEGAN LIVING IN AUSTRALIA

20. This consideration has no relevance to the circumstances of this application.

LENGTH OF TIME RESIDENT IN AUSTRALIA

21. Mr Park has been in Australia for a very short time and his crime was committed in South Korea. This consideration is of no assistance to Mr Park.

INTERNATIONAL OBLIGATIONS

22. Although Mr Park has three children under 18 in South Korea, they are all Korean citizens. No Australian international obligations arise.

OTHER CONSIDERATIONS

FAMILY TIES AND RELATIONSHIPS

23. Mr Park married Ms Choi on 28 June 2009 after he had met her on the last day of his first visit to Australia from March to June 2008. He returned to Australia the next month to see Ms Choi and stayed until October 2008.
24. I accept Mr Park’s evidence that he commenced to support Ms Choi financially soon after their relationship commenced. Ms Choi suffers from a shoulder injury and does not work. Ms Choi also suffers from depression. I note the opinion of Dr Jung Sook Kim, psychiatrist, that while she has a number of issues to come to grips with regardless of whether Mr Park remains in Australia, Ms Choi’s prognosis will be considerably worse if Mr Park’s visa is not granted and he returns to
    South Korea.
25. Ms Choi said that if Mr Park does return to South Korea, she would not be able to accompany him because her adult children are here and so are all of her friends and her support network. She agreed, however, that she would visit him there.
26. I note that Ms Choi was aware before she married Mr Park of the risk that his application for a visa may be refused because of his conviction. This indicates both the genuineness of the commitment to the marriage and Ms Choi’s knowledge of the risk of future hardship.
27. This consideration weighs moderately against refusal of the visa.

AGE

28. Mr Park’s age is of no particular relevance to this application.

HEALTH

29. There is no evidence of ill health suffered by Mr Park.

LINKS TO SOUTH KOREA

30. I note that Mr Park’s mother, sister and three children reside in South Korea. Mr Park only recently left South Korea. His evidence was that he maintains regular contact with his children. His links with South Korea are strong.
31. This consideration does not weigh against refusal of the visa.

HARDSHIP

32. I am satisfied that, should Mr Park be required to return to South Korea, he and Ms Choi would suffer considerable hardship. In addition to the hardship Ms Choi would suffer as a result of being separated from her husband, including the emotional and psychological hardship discussed above, she would lose her financial support.
33. However, I note that Mr Park obtained work in Korea as a welder after he was released from prison. There is no evidence to suggest that he could not do so again were he to return or that he could not continue to provide financial support to
    Ms Choi.
34. I also note Ms Choi’s evidence that she would not accompany Mr Park back to Korea but that she would visit him there.
35. This consideration weighs moderately against refusal of the visa.

LEVEL OF EDUCATION

36. Mr Park’s level of education is of no particular relevance to this application.

FORMAL ADVICE

37. Mr Park received a Notice of Intention to consider refusal his visa application on 18 May 2010. This consideration is neutral.

THE BALANCE OF CONSIDERATIONS

38. Of the primary considerations, the protection of the Australian community weighs minimally in favour of refusal of Mr Park’s visa application, while the remainder are neutral.
39. Of the other considerations, Mr Park’s marriage to Ms Choi (family ties) and the hardship to him and to Ms Choi on separation weigh moderately against refusal of the visa application. His strong links to Korea affect the balance of these considerations to some extent.
40. On balance, I consider the minimal risk of Mr Park repeating his criminal action is outweighed by the other considerations of family ties and hardship. The balance of all considerations weighs minimally against refusal of Mr Park’s application for a visa.

DECISION

41. The decision under review is set aside. Instead the Tribunal decides that the discretion to refuse Mr Park’s application for a visa should not be exercised.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed: .......................[sgd].....................................................

Associate

Date of Hearing 11 January 2011

Date of Decision 19 January 2011

Solicitor for the Applicant Mr Christopher Levingston, Solicitor

Solicitor for the Respondent Mr Rhys Bower, Clayton Utz