Han (Migration)

This matter concerned a review of a decision to cancel the Student (Temporary) (Class TU) visa, subclass 500, held by Mr Jinpil Han. The applicant had provided information in his visa application that was later found to be incorrect, specifically regarding whether he had been known by any other names and whether he had previously overstayed his visa in Australia or another country. The delegate of the Minister had issued a notice under section 107 of the Migration Act 1958 (Cth) detailing the alleged non-compliance, and subsequently cancelled the applicant's visa. The Administrative Appeals Tribunal was tasked with determining if there had been non-compliance as particularised in the notice and, if so, whether the visa cancellation should be affirmed.

The primary legal issues before the Tribunal were whether the applicant had provided incorrect information in his visa application, thereby failing to comply with section 101(b) of the Migration Act, and whether the notice issued under section 107 of the Act was valid and properly particularised the alleged non-compliance. If non-compliance was established, the Tribunal also had to consider whether to exercise its discretion under section 109(1) of the Act to affirm the cancellation of the visa, having regard to prescribed circumstances and other relevant matters.

The Tribunal found that the applicant had indeed provided incorrect information in his visa application by stating he had not been known by any other names and had not previously overstayed his visa. Evidence, including biometric matching and identical unique personal numbers on passports, indicated that the applicant was the same person as Changwon Han, who had previously overstayed an Electronic Travel Authority (ETA) visa in 2009 and was subsequently removed from Australia, becoming subject to a three-year exclusion period. The Tribunal was satisfied that the section 107 notice was valid and correctly particularised the non-compliance. In exercising its discretion under section 109(1), the Tribunal considered the prescribed circumstances under regulation 2.41 of the Migration Regulations 1994 and other relevant matters, including the lack of any dependents, the potential consequences of cancellation such as detention and removal, and the absence of any evidence suggesting a breach of non-refoulement or family unity obligations. The applicant had not provided any submissions or evidence to the Tribunal to suggest hardship or to contest the findings of non-compliance.

Consequently, the Tribunal concluded that there had been non-compliance with section 101(b) of the Act as particularised in the section 107 notice. The Tribunal affirmed the decision to cancel the applicant's visa, finding that the exercise of discretion to cancel was appropriate in the circumstances.