Jung and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 256 (21 February 2020)

1. Section 501(3A)(a)(i) of the Act states that the Minister must cancel a visa that has been granted to the person if they are satisfied that the person does not pass the character test due to them having a substantial criminal record in accordance with section 501(7)(a), (b) or (c); and that they are serving a full-time sentence of imprisonment for an offence.
2. Section 501CA(4) gives the Minister a discretion to revoke the mandatory cancellation of a person's visa if:
   • the person makes representations in accordance with the invitation given by the Minister under section 501CA(3)(b); and
   • the Minister is satisfied that the person either passes the character test (section 501CA(4)(b)(i)) or that there is another reason why the cancellation decision should be revoked (section 501CA(4)(b)(ii)).
3. When considering whether or not to revoke a mandatory cancellation decision under section 501(CA)(4), decision-makers are required to comply with Part C of Direction no. 79 ('the Direction'). Part C of the Direction sets out the primary and other considerations that must be taken into account, where relevant, when deciding whether to revoke a mandatory cancellation. The primary considerations should generally be given greater weight on the other considerations. Those primary considerations are as follows:
   • (a) protection of the Australian community from criminal or other serious conduct;
   • (b) the best interests of minor children in Australia; and
   • (c) expectations of the Australian community.
4. The 'other considerations' which must be taken into account where relevant are outlined at clause 14 of the Direction. The considerations which are relevant to this matter are as follows:
   • (a) Strength, nature and duration of ties; and
   • (b) (c) (d) (e) Extent of impediments if removed.

1. It is not disputed that the Applicant fails to meet the character test in section 501(6)(a) as he has a substantial criminal record (section 501(7)(c)).
2. The issue for determination is therefore whether the Tribunal is satisfied, having regard to the Act and the Direction, that there is another reason why the mandatory cancellation of the Applicant's visa should be revoked.

1. There is no dispute as to the Applicant's conviction and sentencing to a term of five years imprisonment for a series of 10 indecent assaults against a number of female victims, all of whom had gone to the Applicant in his professional capacity as a massage therapist. There is also no doubt that each of these assaults constituted a serious breach of trust and caused significant on-going distress to the victims. A summary of the offences, all of which took place in 2014, was set out by the NSW Court of Appeal as follows:

In the course of treatment of Patient A, the Applicant massaged the top of her breasts and pushed her bra lower and lower and asked "Is that all right? Is that all right?", in circumstances where there was no professional justification to expose the patient's breasts, let alone touch them

During the same treatment session of Patient A as involved in the First Offence, the Applicant placed his fingers on her pubic bone over her tights and pushed down in circumstances where there was no professional justification to be touching the patient in that area

Taken into account on Form 1 on sentence for Third offence

In the course of treating Patient A, the Applicant massaged the patient under her arms and kept pushing her bra down further until her nipples were exposed, making the patient feel uncomfortable, in circumstances where there was no professional justification to expose the patient's breasts

22 months' imprisonment (taking into account two further offences on a Form 1 committed against Patient A - see Second Offence and Fourth Offence

In the course of treating Patient A, in the treatment session which involved the Third Offence, the Applicant placed his fingers on her pubic bone in circumstances where there was no professional justification to be touching the patient in that area

Taken into account on Form 1 on sentence for Third offence

In the course of treating Patient B, the Applicant asked her to remove her bra and then he said "No, no, I do it" and then massaged her left breast with both hands, with that breast being fully exposed, and with the right breast exposed partially in circumstances where there was no professional justification for the breasts being exposed at all let alone touched

Whilst treating Patient C, the Applicant asked the patient to remove her bra so he could examine her posture, and then massaged the patient's exposed breasts with his hands in circumstances where there was no professional justification for touching the patient's breasts

In the course of treating Patient D's shoulders and upper back, the Applicant massaged on and around the patient's breasts for about 10 seconds, in circumstances where there was no professional justification for the breasts to be exposed or touched by the Applicant - after the treatment the Applicant said "I'm sorry, I must apologise if it was inappropriate, you have very beautiful breasts"

Whilst treating Patient E, the Applicant massaged the patient's shoulders and then massaged the whole of her right breast around the nipple area, with her left breast exposed - the massaging continued for several minutes, in circumstances where there was no professional justification for the patient's breasts being exposed or touched

In the course of treating Patient F, the Applicant rubbed his hands back and forth on the exterior of the patient's vagina and over the pubic area, in circumstances where there was no professional justification for touching that part of the patient's body

In the course of treating Patient F in the treatment sessions which involved the Ninth Offence, the Applicant rubbed his hands on the patient's exposed breasts in a circular motion where there was no professional justification to be touching the patient's breasts

In the course of treatment of Patient E, the Applicant massaged both of the patient's exposed breasts for about 10 minutes in circumstances where there was no professional justification for touching the patient's breasts - whilst acting in this way, the Applicant asked the patient about her social life saying "Do you go out? Where do you go? Would you go with other men?"

In the course of a further appointment treating Patient E, the Applicant massaged both of her exposed breasts including the nipples with both hands, in circumstances where there was no professional justification for the breasts to be exposed or touched - the Applicant's hand was slowly creeping down towards the patient's pants line - whilst this was happening, the Applicant asked the patient "Have you had any fun with any men lately?" and said "I can do a full body massage at your home for $50, but don't tell anybody. I can give you my number" - the patient was so nervous that she did not put her bra back on and left with it in her handbag

1. The sentencing Judge in the District court referred to the Applicant's offences as being "objectively grave behaviour".
2. Further, his Honour saw the Applicant as having "reasonable prospects of rehabilitation".
3. The Applicant had no criminal record prior to his conviction in 2016.
4. Under cross-examination the Applicant stated that his offences had occurred because of 'stress' and 'overwork', but he also agreed with the representative of the Respondent that the offences were also committed for 'sexual gratification'. It was noted that he had entered a plea of guilty but not at the earliest time. The Applicant said that he had had time for serious reflection on his behaviour whilst in gaol, he realised that living in Australia was a privilege and that he needed to repay the community for their support.
5. The Applicant has expressed significant remorse for his actions and apologised to his victims. He stated that he understands that if he were allowed to remain in Australia, there would be no second chances if he were to reoffend.
6. The Applicant is married and has two children aged five and seven. His wife and children are Australian citizens. Evidence was given that his wife and children are financially dependent on him and that he also provides substantial physical support to his wife and children, even though he is in detention, as his wife is unwell and thus limited in her capacity to work and to take care of the children. Evidence was given by both the Applicant and his wife that it is not intended that the children will reside other than in Australia. This was because the children were well settled in Australia, did not speak Korean well and were seen to have better long-term prospects in Australia.
7. The Applicant gave evidence that although he had previously worked in South Korea he would find it difficult to resettle and obtain employment in South Korea because of the length of time he had been absent. He has family connections in South Korea including his siblings, parents and parents-in-law. His parents and parents-in-law are elderly and live on a pension. He has had limited contact with his siblings. He speaks Korean fluently.
8. The Applicant gave evidence that he has a good support network in Australia through his family friends and church. A number of letters of support were provided to the Tribunal and a number of friends and church members gave evidence to the Tribunal, namely:
   • Ms Jenny Kim
   • Ms Hyun Mi Kim
   • Ms Yeon Young
   • Mr Yoon Chul Shin
   • Rev. David Um
   • Rev. Hyung Guen Sim
9. All of these witnesses gave evidence that they were aware of the nature of the Applicant's offending although under cross-examination it was apparent that knowledge of the details of specific individual offences was limited. All of the witnesses gave evidence as to the Applicant's remorse and all were certain that he would not re-offend. All gave evidence of their desire to support the Applicant if he were to be released from detention and live in Australia. All of the witnesses had visited the Applicant whilst he was in gaol and/or at Villawood Immigration Detention Centre.
10. Ms Lee gave evidence that the Applicant had worked for her prior to his imprisonment and that she was willing to offer him ongoing employment in her company, in a clerical capacity, if he were able to continue living in Australia. She did not see the Applicant as posing any risk to female employees.
11. Mr Shin gave evidence that he has known the Applicant since 2014 and that he used to meet him socially with his family and that he regarded him as a friend. He regarded the Applicant as a generous, gentle man.
12. Mr Shin gave evidence about the family support networks within the church and also gave evidence as to how the Applicant's wife has struggled to bring up the children whilst the Applicant was in prison.
13. Reverend Sim and Reverend Um both gave evidence that they believed the Applicant was sorry for his offences and that his time in prison had really changed him and forced him to reflect on his conduct. Both were of the opinion that his offences were 'out of character'. Both said they would support him and his family if he were to return to the community.
14. Ms Young gave evidence that she had also offered the Applicant a job. Ms Young and Ms Kim both gave evidence that the Applicant's family was very important to him.
15. A number of the witnesses gave evidence as to the importance of the Applicant to the ongoing welfare of his children.
16. The Applicant's wife, Mrs Han, gave evidence that she had arrived in Australia in 2011 and in 2017 became an Australian citizen. Her two children were born in Australia.
17. She was aware of her husband's offences but in her opinion he would not re-offend because of his deep shame and sorrow. She was also aware of the reasons given for him committing the offences.
18. Mrs Han has family in South Korea but said her parents were elderly and she is not close to her brother, who has his own family.
19. Mrs Han said that she and the children would not return to South Korea. Under cross-examination from counsel for the Applicant, Mrs Han said that the children did not speak Korean well. They had been born in Australia, this country was their home and they were familiar with its culture. She felt the children would have very significant difficulties integrating into South Korean society. Further she said that the education system was very different.
20. Mrs Han also gave evidence of her medical problems. Last year she was diagnosed with hyper-thyroidism which required surgery and/or radio therapy. Mrs Han had been advised by her doctor to have radio therapy as soon as possible however she said she was unable to have treatment as there was no-one to take care of the children. She was currently taking oral medication.
21. Mrs Han gave evidence that without the financial support of her husband the family were completely dependent on Centrelink, including subsidies for the medication she was currently taking for her condition.
22. Mrs Han spoke limited English and her ability to undertake part-time paid work as a piano teacher was restricted by her illness and her need to look after the children. Because of her limited knowledge of English she was less able to help the children, especially her daughter, improve their English vocabulary. The children relied on their father in this regard.
23. The Respondent's counsel produced material which indicated Mrs Han, as a non-citizen of South Korea, would be able to access the South Korean health care system if she were to return to South Korea but she would have to pay for health insurance. Mrs Han would also be able to re-apply for South Korean citizenship. Mrs Han maintained under cross-examination however that for the sake of the children she would not return to South Korea.

1. The Applicant has been found guilty of 10 counts of sexual assault under section 61L of the New South Wales Crimes Act 1900. He was sentenced to five years imprisonment with a non-parole period of three and a half years. The decision was confirmed on appeal on 6 March 2007. A summary of the offences of which the Applicant was found guilty have been previously set out at paragraph 14 above.
2. There is no doubt that these offences were very serious. They involved, on the part of a professionally qualified practitioner, a breach of trust of vulnerable women who had sought professional treatment. In this regard the sentencing judge remarked as follows:

Patients obtaining treatment have to trust healthcare professionals. Patients feel obliged for their own good to comply with a healthcare professional's requests. Most patients would understandably feel that it was against their interests to refuse to cooperate with a request for a healthcare professional in the course of treatment. Accordingly, patients will generally permit a healthcare professional to handle them physically and in private in ways that they would not permit others. In this case the offender who was a physiotherapist for each of the complainants had them attend his practice for therapeutic treatment. In my view he seriously abused the trust placed in him in relation to each of them in relation to the charges for which he is to be sentenced.

...

The present case amplifies the extreme vulnerability of patients and taking advantage of that situation for self-gratification attracts general and personal deterrent elements.

1. The sentencing judge at the original hearing assessed the Applicant's prospects of rehabilitation as "reasonable". A later report dated 14 May 2019 which relates to risk factors in future sexual recidivism found the Applicant to be a "moderate risk "although at the lower end of that level. The report referred to the risk as being primarily sex as coping and also identified "poor cognitive problem-solving" and "deviant sexual interests".
2. It is of concern that the Applicant seems to have had little insight into his behaviour and that at the time he regarded his conduct as "on the borderline." However, the reports of Ms Jane Bell dated 15 July 2015 and 20 August 2015 stated that many of the treatments provided by the Applicant, such as soft tissue massage of the breast, had no therapeutic value. She also considered that the Applicant's interaction with his patients was not appropriate, nor was his remaining in the room while patients removed their clothing or him helping patients to remove their clothing.
3. The sentencing judge did not accept that the Applicant's behaviour was explained by mental illness or stress but rather considered that the Applicant's misconduct was for 'his own sexual gratification'.
4. It is relevant that the Applicant has expressed remorse for his behaviour and apologised to his victims. However it is apparent that the harm inflicted by the Applicant on the victims of his sexual assaults was significant and is ongoing. An indication of the pain caused to the victims can be found in their impact statements, one of which states as follows:

Because of the debilitating injuries I had sustained previously I already lacked confidence and had become a vulnerable person suffering with anxiety and emotional and mental stress that accompanied those injuries.

...

I have suffered enough mentally and physically with my injuries and instead of using your position to treat me and care for me- you Mr Jung abused me and exacerbated my injuries so, instead of promoting my health and well-being, you took it upon yourself, in your position of trust, to choose me as a victim of your perversion.

I am now living with the mistrust and the torment of not knowing who to trust. I hesitate going to any new Medical professional and have become quite reclusive, preferring to only surround myself with people I have known for quite some time. I have lost what was once, an outgoing personality, preferring not to meet anyone new.

...

I have always tried to be a strong, self-confident and trusting person but now Mr Jung you have made me feel like a vulnerable and cynical old lady. Your actions have caused me to have constant feelings of embarrassment, shame & disgust within myself...

1. All of the victims reported ongoing mistrust and feelings of vulnerability.
2. In light of all of the evidence it is impossible to conclude otherwise than that the Applicant is guilty of serious, repeated sexual offences against a significant number of women, all of whom suffered long term harm. He was sentenced to a long period of imprisonment. Such offences are regarded very serious by the Australian community, as emphasised in the Direction at paragraph 13.1.1(1)(a). Although the risk of reoffending has been characterised by an expert as at the low end of moderate and the sentencing judge saw the Applicant's chances of rehabilitation as 'reasonable', there remains a risk to the community, particularly taking advantage of vulnerable women for sexual gratification. I have had regard to the principle that the Government is committed to protecting the Australian community from such serious harm caused by the conduct of non-citizens.
3. I place significant weight on this consideration which weighs against revocation.

The best interests of minor children in Australia

1. The Applicant is the father of two children in Australia, aged seven and aged five. The Applicant and his wife gave evidence to the effect that the Applicant is close to his children and plays a significant role in their lives. He was said to be important to both their financial and emotional welfare.
2. It was argued on behalf of the Respondent that because the Applicant had spent a large part of the children's lives in detention his significance in their lives should be discounted. I do not accept that argument because of the evidence as to the children's strong relationship with their father, for example, in helping them with homework and him needing to provide financial support. Whilst I have regard for the Direction in paragraph 13.2(4)(a), the fact that a parent may be physically absent for much of the time does not necessarily mean that the children have not had regular communication nor that the absent parent does not play an important role in the child's sense of belonging and wellbeing. It is quite clear from the evidence that even whilst in gaol and now in detention, the Applicant was a constant figure in the children's lives, assisting his eldest child with her vocabulary and since being in Villawood having at minimum daily contact with the children by phone and social media. The children were also able to occasionally physically spend time with their father when taken by the mother to visit him. The Applicant gave evidence as to the children's visits and how they were later able to use a garden for visits to him in prison.
3. The Applicant also gave evidence of his aspirations for his children to grow up in Australia and to be able to access the opportunities which he felt Australia offered the children as opposed to living and growing up in South Korea. Even if he were to be removed, the Applicant wanted his children to remain in Australia as he considered that to be very much in their best interests. In light of the evidence from both the Applicant and his wife I accept that it would not be in the best interests of the children to return to South Korea because of the difficulties they would face in settling into a different culture and needing to be educated in a language with which they had limited familiarity.
4. The Applicant was clearly aware of the detrimental effect his behaviour, leading to him being imprisoned for a lengthy period, had had on the welfare of his children.
5. The fact that the children's mother is unwell adds to the importance of the Applicant in the lives of the children. The fact that their mother may have had day to day care and responsibility for them does not detract from the fact that the father was an important part of their lives and that his ongoing emotional and financial support is important to them.
6. The evidence that the Applicant's wife suffered from a serious medical condition was not disputed. She was clearly limited in her capacity to assist the children in a number of aspects of their lives and was not able to provide financial support for them but rather was dependent on Centrelink for ongoing financial support and to assist her with paying for the medication she needed for her hyperthyroidism. I accept the evidence that she needs a further course of treatment which could further limit her capacity to take care of the children. Although she may be able to access what was said to be an excellent medical system in South Korea if she were to return to there, firstly, it is likely that even if she were to return to South Korea there would at least be some delay before she could access the South Korean medical system and there would also be some expense as she is not currently a South Korean citizen. If the Applicant is not able to assist his wife the delay in treatment both in South Korea or in Australia, although for different reasons, may adversely affect her ultimate health outcomes which would in turn impact the children.
7. A number of the witnesses gave evidence as to the importance of the Applicant to his family and their concern about the wife's capacity to cope with the children without the Applicant, even though they were all part of a very supportive church community. In particular, Reverend Sim referred to the dangers of the children living in poverty, their mother's limited capacity to assist the family financially and her difficulties with English literacy.
8. Clearly on the basis of the evidence, without the Applicant, the children face prospects of very significant financial hardship and issues that will hamper their progress at school. The evidence was clear and unequivocal as to their need for their father's support. There is no doubt that the children could continue to have regular contact with their father if he were in South Korea, via social media. However this is a very poor substitute for the ongoing physical presence of a parent. The evidence which was not challenged was that the children had regular visits to their father whilst he was detained. Further, physical separation over a lengthy period of time may also contribute to family breakdown.
9. I note there is no evidence that the Applicant has been other than a loving and caring parent for the children and has gone to great lengths to maintain his relationship with them.
10. Every case is unique and must be decided on its particular facts. In this case it is important that the evidence that the children's mother is struggling to cope even with the support of the church community and the limited support the Applicant is able to give her in assisting the children from detention is clear and compelling. I accept the evidence that he speaks to them, often several times and for long periods, every day. The children's mother struggles with language, earning capacity and an inability to assist the children with their schoolwork. Her illness is serious and is likely to seriously impact at least for the foreseeable future on her capacity to care for the children. Thus, these children are particularly vulnerable.
11. I find that it would be in the best interests of the Applicant's children for the visa cancellation to be revoked. I give very significant weight to this factor which weighs in favour of revocation.

1. Guidance to the Tribunal in considering this issue is set out in clause 13.3(1) of the Direction which states as follows:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government's views in this respect.

1. Further guidance was given by the Full Federal Court in the case of FYBR and Minister for Home Affairs [2019] FCAFC 185 where the Court found (by majority) that it is not for the decision-maker to assess what the expectations of the Australian community are for the purposes of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction.
2. It is clear from the Direction that the Australian community expects noncitizens to obey Australian laws while in Australia. In this case, there is clear evidence that the Applicant has committed serious sexual offences against women when he was in a position of trust and was given a lengthy term of imprisonment.
3. Accordingly, I find that the expectations of the Australian community would be that the Applicant should not hold a visa. I give substantial weight to this consideration which weighs against revocation.

The strength, nature and duration of ties to Australia

1. The Applicant arrived in Australia at the age of 26. He is now 40 years of age. His professional qualifications were obtained in South Korea.
2. I accept that he has a strong and ongoing relationship with his children and with his wife. The rest of his extended family reside in South Korea.
3. The evidence given by the Applicant and the other witnesses shows that he has strong links to his church group and that he receives significant support from this community. A letter of support was provided to the applicant by the pastor of his local church group, the Rev David (Yong Hee) Um. A letter of support was also received from Ms Jenny Lee who further states that she is willing to employ the Applicant in her company if he is released from detention. Both Reverend Um and Ms Lee gave evidence at the hearing in person along with other members of the South Korean Presbyterian church community.
4. As discussed more fully above the removal of the Applicant from Australia would have ongoing, serious and adverse consequences for his wife and children.
5. Having regard to all of the evidence presented I find that the Applicant does have close and significant ties to the Australian community and that the effect of non-revocation would be very negative for his immediate family. I give significant weight to this consideration which weighs in favour of revocation.

1. The Tribunal is required to consider the extent of any impediment that the noncitizen may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards.
2. The Applicant spent the first 26 years of his life in South Korea and obtained his academic qualifications in that country. He speaks South Korean fluently and has previously worked in South Korea. His extended family including his mother and father and his parents-in-law are all resident in South Korea. His parents and parents-in-law are elderly and retired. Their assistance to him is likely to be limited by their age and circumstances.
3. The evidence taken as a whole indicates that although it may be difficult for the Applicant to re-establish himself in South Korea, he has spent more time in that country than he has in Australia. He has local qualifications and work experience and could be expected to receive some, albeit limited support from his extended family. Although it would be difficult to re-establish himself in South Korea, it is certainly possible.
4. I note that the Applicant did previously suffer from a major depressive disorder but that does not appear to be ongoing. In any event the Applicant is likely to have access to good medical facilities in South Korea.
5. The Applicant would, on the evidence presented, suffer from guilt and a sense of great loss if removed from his immediate family. Further, he would be removed from a very significant support group which is important to him and to his family.
6. Having considered all of the evidence I am of the opinion that the Applicant would face some impediments for the purposes of clause 14.5 of the Direction if he were to be returned to South Korea.
7. While this consideration weighs in favour of revocation, I give it limited weight because of the Applicant's familiarity with South Korea.

1. This has been a very difficult case to decide. On the one hand, the Applicant is guilty of very serious offences which demonstrate a betrayal of trust both in relation to his victims and to the Australian community more generally. It is a privilege for non-citizens to be able to live in Australia. The Australian community has an expectation that this privilege will not be abused. The Applicant's behaviour which led to his imprisonment was completely inexcusable.
2. On the other hand, the Applicant has two young children both of whom are at a very important developmental stage. The evidence as to his importance in their lives is clear and incontrovertible. The Applicant's wife is hampered by a lack of English language skills and serious health issues. She is unlikely to be able to work other than on a very part-time basis for the foreseeable future. As a result, without the Applicant's support the family is likely to be totally dependent on welfare. If the father were to return to South Korea, not only would the children be deprived of his physical presence, his capacity to help with their schooling and his ongoing support for their mother, but they would also be deprived of the financial support he can give them if he works in Australia. The limited evidence available indicated that wages are significantly lower in South Korea and it is reasonable to expect that the Applicant having paid for his own support would have very limited capacity to assist the family in Australia.
3. Further, there is likely to be an interruption in his capacity to provide any support to the family while he looks for employment and tries to establish himself in South Korea. In Australia, the evidence is that he would have a job immediately upon leaving detention.
4. I note again that Reverend Sim, whom I found to be a very credible witness, expressed very serious concern for the welfare of the Applicant's children if he were not physically present in Australia. His concerns were echoed by a number of other witnesses, all of whom presented as honest and sincere.
5. In making my decision I have regard to the comments of Stewart J in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [105]:

...Further, the best interests of minor children in Australia who may be affected by the decision is also a primary consideration ... In any particular case, that primary consideration may outweigh, or contribute with other considerations to outweigh, the consideration of the expectations of the Australian community (cl 8(3)).

1. In this case it is a very fine line indeed. However, having regard to all of the evidence I believe that the best interests of the children in particular, coupled with the strength, nature and duration of ties the Applicant has to Australia and the limited impediments he would face upon removal, outweigh those considerations which weigh against him. There is therefore another reason why the mandatory cancellation should be revoked.

1. The reviewable decision is set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant's Employer Nomination (Residence) (Class BW) Subclass 857 - Regional Sponsored Migration Scheme Visa.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

................................[sgd]........................................