Khim (Migration)

[2020] AATA 5050

Khim (Migration) [2020] AATA 5050 (21 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yongdeok Khim

CASE NUMBER:  1910405

DIBP REFERENCE(S):  BCC2019/1233771

MEMBER:Antoinette Younes

DATE:21 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 21 September 2020 at 11:56am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect answers in visa application – previous entries to Australia under different names – same identity document numbers – previous unlawful residences – debts to the Commonwealth – previous removals from Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101 of the Act.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   HEARING INVITATION

5. On 24 August 2020, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled on 14 September 2020. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration.

6. On 24 September 2020, the Tribunal received a response from the applicant’s representative advising the Tribunal that the applicant wishes the Tribunal to make a decision on the papers. 

7. The Tribunal is satisfied that it has given the applicant a fair opportunity to attend a hearing.  The applicant has declined the hearing invitation. In those circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. 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?

11. In support of the application for review the applicant provided to the Tribunal a copy of the delegate’s decision record. 

12. 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.

13. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act.

14. Section 101 provides that:

    Visa 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.

15. The delegate’s decision record indicates that:

    i)   On 20 October 2014, the applicant lodged an application for a student visa subclass 572. In the application, the applicant gave his first name as Yongdeok, family name as KHIM, and date of birth of 29 March 1968.  In relation to the questions whether any applicant in the application has ever been removed from any country (including Australia), or been excluded from or asked to leave any country (including Australia), or had any outstanding debts to the Australian Government or any public authority in Australia, the applicant responded in the negative to all three questions.

    ii)     On 15 February 2017, the applicant lodged an application for a student visa subclass 500. In the application, the applicant gave his first name as Yongdeok, family name as KHIM, and date of birth of 29 March 1968.  In relation to the question whether the applicant has ever been known by any other name, the applicant answered “No”.   The applicant answered “No” to the question whether any included applicant has ever been to Australia or any other country and did not comply with a visa condition or departed outside their period of stay.  The applicant answered “No” to the question whether any included applicant has ever had an application for entry or further stay in Australia or any other country refused or visa cancelled.  The applicant answered “No” to the question whether any included applicant has ever been removed, deported or excluded from any country including Australia.  The applicant answered “No” to the question whether any included applicant has ever overstayed a visa in any country including Australia.  The applicant answered “No” to the question whether any included applicant has ever had any outstanding debts to the Commonwealth or any public authority in Australia.

    iii)   Departmental records show that a person named Whan Suo Khim born on 29 March 1968 had entered Australia on 23 June 2004 on a subclass 976 Electronic Travel Authority visa.  The Departmental facial comparison team examined photographs of Whan Suo Khim and the applicant and concluded that they were the same person.  Moreover, Departmental records indicate that the passports of the applicant and Whan Suo Khim contain the same personal identity number.

    iv)   Departmental records show that another person, Han Soo Kim born on 29 March 1968 entered Australia on 12 March 1998 on a UD 976 Electronic Travel Authority visa.  Those records indicate that the passports belonging to the applicant, Han Soo Kim and Whan Suo Khim have the same personal identity number.  Korean identity numbers are unique, and all three persons have the same personal number shown on their passports.

    v)    On 21 April 2004, Whan Suo Khim was granted a subclass 976 Electronic Travel Authority visa and a subsequent one on 17 June 2004.  He travelled to Australia on 23 April 2004.  On 28 September 2004, he was granted a subclass TN 686 Tourist – Long Stay visa.  He then applied for a Skilled – Independent (BN 136) visa which was refused on 28 June 2007.  During 2005, he travelled to and from Australia on the TN 686 visa.  On 25 July 2005, he was granted a further 976 visa and arrived in Australia on this visa on 24 August 2005.  He remained in Australia unlawfully beyond the expiry date of 24 November 2005.  He was detained under s.189 of the Act on 31 March 2013 and was removed from Australia on 29 April 2013.  He incurred a debt to the Commonwealth of $1,146.63 relating to removal.  He was subject to Public Interest Criteria (PIC) 4004 (indefinite), 4014 (3 years from departure), and Special Return Criterion 5002 (1 year).

    vi)   On 11 March 1998, Han Soo Kim was granted a UD-976 visa and he arrived in Australia on 12 March 1998.  On 12 June 1998, he was granted a TN-686 visa but he did not depart Australia prior to its expiry.  On 4 September 2003, he was detained for being unlawful and removed from Australia on 24 September 2003.  He incurred a debt to the Commonwealth of $2,424.40 relating to detention and $957.68 for his removal.  He was subject to Public Interest Criteria (PIC) 4004 (indefinite), 4014 (3 years from departure), and Special Return Criterion 5002 (1year).

    vii)  On 18 March 2019, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant responded by advising that the allegations are serious and more time was needed in order to access the documents.

16. The applicant declined the hearing invitation which would have been his opportunity to present his own version of events as well as raise any matters relevant to the discretionary factors.

17. On the evidence, the Tribunal finds that the applicant, Han Soo Kim and Whan Suo Khim are the same person and accordingly, the Tribunal finds that the applicant provided incorrect answers in the student visa application subclass 572 lodged on 20 October 2014, when he did not disclose in the application that he has been removed from Australia, that he has been excluded from or asked to leave Australia (under Special Return Criterion 5002, and PIC 4004 and 4014), and that he had outstanding debts to the Australian Government.

18. Furthermore, on the evidence the Tribunal further finds that the applicant provided incorrect questions when he lodged the subclass 500 student visa application on 15 February 2017, to the following questions:

    ·Is this applicant currently, or have they ever been known by any other names?

    ·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?

    ·Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?

    ·Has any applicant ever been removed, deported or excluded from any country (including Australia)?

    ·Has any applicant ever overstayed a visa in any country (including Australia)?

    ·Has any applicant ever had any outstanding debts to the Australian Government or any public?

19. By answering “No” to the above questions, the applicant provided incorrect information because, he has been known by other names, he has been in Australia previously and he departed Australia outside his authorised period of stay, he was removed from Australia, he overstayed in Australia, he was excluded from applying for further visas under Special Return Criterion 5002, and PIC 4004 and 4014, and he had outstanding debts to the Australian Government.

20. The Tribunal therefore finds that the applicant did not comply with s.101(b) in relation to the in relation to the student visas subclass 572 and 500.

21. For those reasons, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

22. 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).

23. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

24. The correct in relation to the Student visa (TU-572) is that the applicant was removed from Australia, that he was excluded from or asked to leave Australia, and that he had outstanding debts to the Australian Government. The correct information in relation to the Student visa (TU-500) is that the applicant was known by other names, that he had been in Australia, that he departed outside his authorised period of stay, that he had an application for further stay in Australia refused, that he was removed from Australia, that he overstayed a visa in Australia, and that he had outstanding debts to the Australian Government.

25. The evidence before the Tribunal indicates that over the years, the applicant has demonstrated a significant degree of disrespect and non-compliance with Australia’s laws.  The provision of incorrect information is a serious matter.  As is the case in this instance, under s.109, a visa can be cancelled if incorrect information is provided.  The Tribunal is of the view that the provision of incorrect information in a visa application has the potential of undermining the migration program and Australia’s migration laws. 

26. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·     the content of the genuine document (if any)

27. There is no issue in relation to a genuine document. 

28. The Tribunal gives this aspect neutral weight.

    ·     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

29. The evidence before the Tribunal indicates the applicant’s overstaying in Australia and being removed resulted in measures to prevent him from being granted a further visa.  As noted earlier, he was subject to PIC 4004 (indefinite) as a result of having outstanding debts to the Commonwealth and had not made appropriate arrangements for payment. He was subject to PIC  4014 (3 years from departure), because he left Australia while not holding a visa, and more than 28 days after he last held a substantive visa. He was also subject to Special Return Criterion 5002 (1 year), because of being removed from Australia under section 198 of the Act.

30. The Tribunal is satisfied that by providing incorrect answers in the student visa application, the applicant did not undergo comprehensive assessments, including whether he could meet any applicable PIC or Special Return Criteria.  The Tribunal considers the applicant’s migration history and level of non-compliance to be at the significant end and that if the correct information had been provided, he would not have met the criteria for the TU-572 or the TU-500 visas.  The Tribunal is therefore satisfied that the decisions to grant both visas were based, wholly or partly on the incorrect information.

31. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·     the circumstances in which the non-compliance occurred

32. The circumstances of non-compliance occurred when the applicant provided incorrect information when applying for the TU-572 and the TU-500 visas, as outlined above.    

33. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·     the present circumstances of the visa holder

34. The Tribunal has no information about the applicant’s present circumstances. 

35. The Tribunal gives this consideration neutral weight.

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

36. The applicant ‘responded’ to the NOITCC by essentially requesting information.

37. The Tribunal gives this consideration neutral weight.

    ·     any other instances of non-compliance by the visa holder known to the Minister

38. As discussed in the delegate’s decision record, the applicant did not comply with the period of stay requirements of the TN-686 and UD-976 visas. The TN-686 visa was held under the name of Han Soo Kim. It was granted on 12 June 1998 and was valid until 12 December 1998 but the applicant overstayed the visa by more than 28 days, until he was located and detained on 04 September 2003 and then removed from Australia on 24 September 2003.  The UD-976 visa was held under the name of Whan Suo Khim.  The visa was granted on 25 July 2005 and was valid until 24 August 2005.  The applicant overstayed this visa by more than 28 days, until he was located on 31 March 2013, detained and removed from Australia on 29 April 2013.

39. As discussed earlier, the Tribunal considers the level of the applicant’s non-compliance to be serious.

40. The Tribunal gives this aspect significant weight in favour of cancellation.

    ·     the time that has elapsed since the non-compliance

41. The initial instance of non-compliance occurred in 2004 followed by the more recent visa application lodged on 15 February 2017.

42. The Tribunal acknowledges that the applicant has been in Australia for a considerable period, including about 5 years as Han Soo Kim, about 9 years as Whan Suo Khim, and over 5 years under the identity of Yongdeok Khim.  However, the applicant spent about 7.5 years residing in Australia as an unlawful non-citizen under the identity of Whan Suo Khim, and about 5 years under the identity of Han Soo Kim.

43. The applicant has declined the hearing invitation and the Tribunal has no information about the applicant’s circumstances to suggest that those periods in the applicant’s case are significant or substantial, or evidence of strong ties with the Australian community.

44. The Tribunal gives this consideration weight in favour of cancellation.

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

45. There is no evidence before the Tribunal of any breaches of the law since the non-compliance.

46. The Tribunal gives this aspect neutral weight.

    ·     any contribution made by the holder to the community.

47. The applicant has not made any submissions concerning this aspect.      

48. The Tribunal gives this aspect neutral weight.

49. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural 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.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

50. The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. To minimise or avoid those potential consequences, the applicant could voluntarily depart Australia. The applicant would also face difficulties in applying for any further visas in Australia, and in being granted an Australian visa.

51. The Tribunal considers potential detention and removal from Australia as well as the s.48 bar to be intended legislative consequences. 

52. The Tribunal gives this aspect neutral weight.

    ·whether there would be consequential cancellations under s.140

53. There is no evidence that the cancellation of the applicant’s visa would result in the cancellation of the visa of another person, pursuant to s.140. 

54. The Tribunal gives this aspect neutral weight.

    ·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

1. There is no information before the Tribunal to suggest that Australia would be in breach of any of its international obligations, such as non-refoulement obligations in the event of cancellation. 

2. The Tribunal gives this aspect neutral weight.

   ·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

3. The applicant has not made any submissions in this regard.  However, the Tribunal appreciates that the visa cancellation could result in emotional and psychological hardship.  The Tribunal gives those matters some weight in the applicant’s favour.

4. There are no other matters requiring consideration.

   Concluding remarks

5. The Tribunal has carefully considered the material before it individually and cumulatively. 

6. There are limited aspects in the applicant’s favour.  On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.

7. 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

8. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   Antoinette Younes

   
   Senior Member

   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.