Han (Migration)

Han (Migration) [2023] AATA 3575 (19 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jinpil Han
REPRESENTATIVE:  Ms Esther Shin
CASE NUMBER:  2208445
HOME AFFAIRS REFERENCE(S):          BCC2021/1413999
MEMBER:Christine Kannis
DATE:19 August 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 19 August 2023 at 3:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – identity details – previous visa applications – unlawful residence on a previous visa – exclusion from Australian – no current enrolment – separation from wife – decision under review affirmed
LEGISLATION
Education Services for Overseas StudentsAct 2000, s 19
Migration Act 1958, ss 5(1), 97-105, 107-109, 140, 189, 360
Migration Regulations 1994, Schedule 4, Public Interest Criteria 4014; r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s 101(b) of the Act. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
On 26 June 2023, the Tribunal sent the applicant’s representative an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 1 August 2023 at 11.00 am (NSW time).The letter requested that the enclosed ‘Response to hearing invitation’ form be returned to the Tribunal within 7 days of receipt of the letter. The letter also requested that the applicant provide all documents on which he intends to rely on to support his case by 25 July 2023.
The applicant did not respond to the Invitation to Attend a Hearing and did not provide a completed ‘Response to the hearing invitation’ within 7 days or at any time.
On 24 July 2023, the Tribunal sent an email to the applicant’s representative confirming information provided on 26 June 2023 in relation to provision of evidence including witness statements or outlines of evidence, written submissions and documents. The email stated:
The Tribunal is yet to receive the hearing response and witness statements from the applicant and witnesses setting out the evidence they will give during hearing. Please ensure to comply with this direction as outlined in the hearing invitation
and ensure the statements and any other documents are received by 25 July 2023.
….
Please also note that you have a MS Teams test scheduled for 25 July 2023.
The applicant did not provide any witness statements or outlines of evidence, written submissions and documents by 25 July 2023 or at any time.
On 25 July 2023, the Tribunal sent the applicant a SMS hearing reminder to the phone number provided in the Application for review.
On 31 July 2023, the Tribunal sent the applicant a SMS hearing reminder to the phone number provided in the Application for review.
Following the sending of the second SMS hearing reminder, on 31 July 2023 the applicant’s representative advised by email:
We refer to the above matter and the Tribunal’s invitation to attend a Hearing.
We are instructed to notify the Tribunal that the Review Applicant has suffered panic attacks more frequently and feels unable to attend the hearing in person due to his health concerns.
The Review Applicant now seeks to explore other options available to him and asks the Tribunal to make a decision on the papers.
Should the Tribunal request further information, please do not hesitate to contact the undersigned.
Following the sending of the second SMS hearing reminder, on 31 July 2023 the applicant’s representative provided a letter dated 31 July 2023 signed by the applicant in which he said:
We refer to your letter of 26 June 2023 inviting me to attend a hearing and I understand that the hearing date has been set for 1 August 2023.
We wish to forego our rights to the hearing and ask the AAT to make a decision on the papers, without me attending the hearing.
I understand that this request may lead to Migration & Refugee Division of the AAT to affirm the decisions under review
The applicant was represented in relation to the review.
The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing.
The Tribunal proceeds to make a decision in this case as it is empowered to do under s 360(2)(b) of the Act.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
Background
In his Application for a Student Visa lodged on 2 March 2021, on page 2, the form asked , Enter the following details as they appear in the applicant’s passport and the applicant provided the following information:
Family name: Han
Given names: Jinpil
Sex: Male
Date of birth: 03 November 1982
Passport number: [Number 1]
Country of passport: Korea, Republic of (South) – KOR
Nationality of passport holder: Korea, Republic of (South) – KOR
Date of issue: [in] 2013
Date of expiry: [in] 2023
Place of Issue: Ministry of Foreign Affairs
At page 3 of the visa application, the form asked, “Is this applicant currently, or have they ever been known by any other names?” The applicant answered “No” to this question.
At page 14 of the visa application, the form asked, “Has the applicant, or any person included in this application, ever been in Australia or any other country and not complied with visa conditions or departed outside their authorised period of stay?” The applicant answered “No” to this question.
On page 17 visa application, under the heading Declarations, the applicant provided the following answers:
Have read and understood the information provided to them in this application.
Yes
Have provided complete and correct information in every detail on this form, and on any attachments to it.
Yes
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled. Yes
The delegate referred to an image the applicant provided to the Department with his Student visa application, and a photograph of another person named, Changwon Han (DOB: 03 November 1982) which was biometrically matched on Departmental systems. It was also noted that Changwon Han’s passport [Number 2], issued [in] 2006, reflects the same unique “Personal Number” as the applicant’s passport. The unique "Personal No." located on the Passport Bio data page is a part of the South Korean citizenship identification number which is unchangeable. Therefore, it appears the applicant and Changwon Han are the same person.
On 11 April 2007, Changwon Han arrived in Australia as the holder of a Working Holiday (subclass 417) visa. On 08 April 2008, Changwon Han lodged an application for a second Working Holiday visa, which was granted on 07 June 2008. On 17 June 2008, Changwon Han departed Australia having utilised the maximum period of stay allowed in Australia as the holder of a Working Holiday visa.
On 16 April 2009, Changwon Han arrived in Australia as the holder of an Electronic Travel Authority (ETA) (Subclass 976) visa. On 16 July 2009, Changwon Han’s ETA ceased and he became unlawful. On 02 January 2013, Changwon Han was detained and was voluntarily removed from Australia on 11 January 2013. Upon departure, he became subject to an exclusion clause under Public Interest Criteria 4014, preventing him from being granted any visas for a period of three years from the date of his departure.
On 29 March 2013, the applicant lodged an application overseas for a Working Holiday visa using his South Korean passport number [Number 1] that had recently been issued [in] 2013. The applicant’s Working Holiday visa was granted on 05 April 2013 and he arrived in Australia on 02 May 2013.
Given the information provided by the applicant in his Application for a Student Visa lodged on 2 March 2021 and biometrically matched information on Departmental systems to Changwon Han, the non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) of the Act in the following respects:
Alleged non-compliance with s 101(b)
Section 101 provides that visa applications are to be correct, and paragraph (b) specifically requires that no incorrect answers are given or provided.
The non-compliance identified as non-compliance with s 101(b) was:
- The applicant provided incorrect answers in his Application for a Student Visa when:
(i)On page 3 the form asked, “Is this applicant currently, or have they ever been known by any other names?” and he answered “No”.
(ii)On page 14 the form asked, “Has the applicant, or any person included in this application, ever been in Australia or any other country and not complied with visa conditions or departed outside their authorised period of stay? And he answered “No”. (On 11 January 2013 Changwon Han departed Australia outside the authorised period of stay by more three years)
(iii)He declared that the information he provided was complete and correct information in every detail on the form, and on any attachments to it under the heading Declarations.
Section 99 of the Act provides that any information a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of s.101, paragraphs 101(b) and 102(b) and ss. 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
Section 100 of the Act provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
The information was considered to be incorrect because information based on the biometrically matched information on Departmental systems of the applicant and Changwon Han, the applicant had been known by another name and had departed from Australia in 2013 outside his authorised period of stay.
Response to the s 107 notice
The applicant did not respond to the s 107 notice.
The applicant did not attend the scheduled hearing, did not provide written submissions or documentation to the Tribunal in support of his application for review and requested that the application be determined on the papers.
Conclusion on non-compliance
On the evidence before it, the Tribunal finds that the applicant’s answers on page 3 and page 14 (see paragraph 31) on his visa application form stating that he had not been known by another name and had not departed from Australia or any other country outside his authorised period of stay was incorrect information and provided by the applicant.
Further non-compliance with s 101(b) of the Act was identified and particularised in the s 107 notice because the applicant answered Yes to the Declarations that he agreed to provide correct and up to date information. The information regarding whether he had been known by another name or had departed from Australia or any other country outside his authorised period of stay was incorrect information. The Tribunal further finds that by declaring that the information he provided was complete and correct information in every detail on the form and on any attachments to it, he provided an incorrect answer.
Accordingly, the applicant has not complied with s 101(b) as described in the s 107 notice.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response to the s 107 notice and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (the Regulations).
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that are relevant in any given case: MIAC v Khadji (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has taken the reg 2.41 prescribed circumstances as well as any other relevant facts and matters, including the applicant’s responses to the s 107 notice into account when considering the discretion.
Prescribed circumstances
The correct information
There was nothing before the Tribunal to indicate that the applicant disagreed that he provided incorrect information to the Department.
The correct information is that the applicant had been known by another name and had departed from Australia in 2013 outside his authorised period of stay. The correct information was not provided to the Department.
The Tribunal gives this some weight in favour of exercising its discretion to cancel the visa.
The content of the genuine document (if any)
This consideration does not apply in this case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
For the reasons set out above, the Tribunal has concluded that the decision to grant the visa was based partly on incorrect information. It is not necessary to establish that the visa would not have been granted if the correct information was known. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on the incorrect information.
The Tribunal gives this factor weight in favour of its discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The applicant did not respond to the s 107 notice and did not provide any written submissions or documentation to the Tribunal. There was nothing before the Tribunal to indicate that the provision of incorrect information was unintentional or outside the applicant’s control.
The Tribunal gives this factor significant weight in favour of its discretion to cancel the visa.
The present circumstances of the visa holder
The applicant did not respond to the s 107 notice and did not provide any written submissions or documentation to the Tribunal. The information before the Tribunal indicates that the applicant has been living in Australia under his new identity since 12 September 2018 and has resided here since this date as a temporary visa holder.
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act). The information from PRISMS shows that the applicant is not currently enrolled in a registered course.
The delegate referred to the likelihood of the applicant having developed some social ties to the community and said he may experience some emotional hardship if the visa is cancelled, as he will no longer have an ability to remain lawfully in Australia. The delegate also referred to the applicant declaring that he is married to Hwayeon Ju who was in Australia on a temporary ETA valid until 20 July 2022 and that visa cancellation may cause his wife some emotional distress should they be separated.
As noted, the applicant has not provided any evidence regarding his present circumstances and the Tribunal does not place any weight on his present circumstances in favour of its discretion to cancel the visa or against cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant did not respond to the s 107 notice.
The delegate noted that the applicant had not complied with the obligations of s 109 under Subdivision C of Division 3 of Part 2 of the Act, as he has provided incorrect information in support of the Student visa application and according to Departmental records there is no evidence he made any effort to notify the Department prior to, or after the grant of his visa, of the incorrect information provided in the application.
The Tribunal gives this factor some weight in favour of its discretion to cancel the visa.
Any other instances of non-compliance by the visa holder known to the Minister
On 16 July 2009, Changwon Han’s ETA ceased and he continued to remain in Australia as an unlawful non-citizen for three years until his departure from Australia on 11 January 2013.
The Tribunal gives this consideration some weight in favour of its discretion to cancel the visa.
The time that has elapsed since the non-compliance
The applicant provided the incorrect answers on his application form submitted to the Department on 02 March 2021. The Tribunal accepts that it is more than 2 years since the events of non-compliance occurred, however does not consider this to be a significant amount of time.
The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined.

The Tribunal gives this consideration a little weight against cancelling the visa.
Any contribution made by the holder to the community
The applicant did not respond to the s 107 notice and did not provide any written submissions or documentation to the Tribunal. There was nothing before the Tribunal to indicate that the applicant makes any contribution to the community.
The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in reg 2.41 where they are relevant or applicable in this case.
Other considerations
As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered the following additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and the Tribunal gives this factor no weight in its considerations.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s 189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a 3 year exclusion period unless he meets the relevant Public Interest Criterion. Whilst these are serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
There is nothing before the Tribunal to indicate that there are children who would be affected by the cancellation. The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The applicant is a citizen of South Korea and has made no claim for a protection visa. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations or family unity obligations. The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member
The applicant did not respond to the s 107 notice and did not provide any written submissions or documentation to the Tribunal. There was nothing before the Tribunal to indicate that hardship may be caused to the applicant and any family member by cancellation of the visa.
The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Conclusion on the exercise of the discretion
The Tribunal has considered the factors identified by the legislation and policy. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s 101(b) of the Act.
The Tribunal accepts that if the applicant’svisa is cancelled, and unless he is granted another visa, he may be subject to detention, although the applicant may be eligible to apply for othervisas. The Tribunal accepts that the applicant has no criminal record. These are factors that suggest that the visa should not be cancelled.
The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.
The Tribunal accepts that the applicant has another instance of non-compliance when he continued to remain in Australia as an unlawful non-citizen for three years until his departure from Australia on 11 January 2013. The Tribunal places weight on the fact that the correct information was not provided to the Department and that the decision to grant the visa was based partly on incorrect information provided to the Department.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2023] AATA 3575

19 August 2023

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