Kim (Migration)

Kim (Migration) [2022] AATA 876 (22 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Myounggyo Kim
REPRESENTATIVE:  Mrs Julien Joo Yeun Song (MARN: 0741704)
CASE NUMBER:  2113326
HOME AFFAIRS REFERENCE(S):          BCC2020/1463522
MEMBER:Jennifer Cripps Watts
DATE:22 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 22 March 2022 at 3:58pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false or misleading information in the visa application – three year exclusion period after previous visa cancellation – applicant officially changed his name twice – further visa application under name variation – previous names not declared – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 57, 65
Migration Regulations 1994, Schedule 2 cls 500.212, 500.217; Schedule 4, Public Interest Criterion 4020; r 1.03
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
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 on 22 September 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 April 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not satisfy Public Interest Criteria (PIC) 4020.
The applicant appeared before the Tribunal on 21 March 2022 to give evidence and present arguments, by MS-Teams audio-visual. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. Early in the hearing, the applicant confirmed he was understanding the interpreter.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 500.217(1) for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
The applicant is a national of South Korea, born in 1982. He first arrived in Australia holding a subclass 417 working holiday visa (the first 417 visa) in 2010. He was granted a second working holiday visa (the second 417 visa) on 27 September 2011; the second 417 visa was cancelled on 26 October 2012 because the applicant provided incorrect information about having undertaken specified work in a regional area, which was a requirement for the grant of the visa. The applicant departed Australia on 17 November 2012, subject to a three year exclusion period because of the cancellation of his second 417 visa. At the time he departed, he held a passport issued in 2008, in the name of Mr Myoung Gyoo Kim.
Relevantly in this case the following passports have been issued to the applicant:
a.In the name Myoung Gyoo Kim, issued in 2008
b.In the name Myounggyo Kim, issued 26 June 2013, expired 22 October 2020
c.In the name, Myounggyo Kim, from 6 August 2020 to 6 August 2030
The passports all have the same date of birth. The applicant claims he lost the first passport listed above, on or about 17 November 2012, at an airport in Korea when he returned there from Australia after his second 417 visa had been cancelled. At the Tribunal hearing, the applicant said he made a report to the police in Korea ‘straight after’ he lost the passport issued in 2008 and, in around January 2013 he applied for a new passport; the second passport above, that was issued in June 2013.
In November 2012, the applicant had departed Australia holding a Bridging Visa E after his second 417 visa was cancelled and was subject to a three year exclusion period. After arriving back in Korea, he nonetheless applied offshore for a subclass 570 student visa only a few months later. The subclass 570 student visa was granted on 5 August 2013. The applicant used the passport issued in June 2013 for his subsequent travel to Australia.
From around the time the second passport above was issued, the applicant resided onshore on other visas that were granted to him and has included in the online application form generated on April 2020 the following stays in Australia and the purpose of the stays:
·13 August 2013 to 18 November 2013  student
·24 November 2013 to 11 September 2014               student
·25 September 2014 to 20 November 2016               student
·2 December 2016 to 29 January 2017  student
·18 February 2017 to 20 January 2019  student (dependent)
·7 February 2019 to 17 February 2020  student (dependent)
At the Tribunal hearing, the applicant said that he got married in Australia to Minnjae Cha, an international student from Korea. He was asked when they got married and said in ‘about 2017’. He was asked when they got divorced and said ‘about two years ago’. It was put to the applicant that it seemed odd that he had been married and divorced within the last five years and couldn’t remember the dates, to which he responded that they ‘didn’t get on very well’. He then referred to emails and confirmed that the divorce proceedings were on 14 February 2020 and that he had to some papers on 30 June 2020.
On 6 August 2020, relating to the subclass 500 student visa application that is the subject of this review, the Department sent the applicant a natural justice letter (s.57 of the Act) inviting him to comment on or respond to adverse information. The adverse information was, essentially, that the applicant had not answered certain questions in the visa application in the affirmative when it appeared he should have. Specifically, relating to being known by any other names and whether he had been non-compliance with any visa conditions in Australia or any other country. He was informed that this was considered to be false or misleading information and was invited to respond in writing.
The applicant provided a written response, dated 2 September 2020. A duplicate copy of the response was provided to the Tribunal with the review application. Essentially, he claims that since he was a young boy he has always been ‘known as and called’ MyoungGyo. In the response dated 2 September 2020, an explanation was provided about why the applicant had different names at different points in time, with reasons, and why he did not include in visa applications that he had been known by another name or names, in summary, as follows:
·He was named Tae Myoung when he was born, in 1982 and it was this name that was registered on his identification certificate
·On 27 February 2008, the applicant changed his named his name that was registered at birth from Tae Myoung to Myoung Gyoo and ‘officially filed the report’ and it was under this name, Myoung Gyoo Kim, that the applicant was granted both his first and second 417 visas, which he held from 2010 to October 2012
·In 2013, he changed his name again and ‘had to go through the step of filing an administrative litigation to Family court to correct/change his name to ‘MyoungGyo’ in the official document’
·He did not intentionally change his name in 2013 to obtain an Australian visa
·It was not the applicant’s intention to avoid the three year exclusion period that was imposed after his second 417 visa was cancelled in October 2012
·It was due to superstition in Korea, and is a cultural norm, that a different name may be ‘more beneficial’ to a person’s life and some people change their names for this reason
·The applicant relied on the instructions given by the education agency in Korea when he applied for the subclass 570 student in 2013, answered their questions truthfully, but ‘no questions were asked about the name changes at the time’
·In the visa application that is the subject of the review the applicant thought because he had always been known as Myoung Gyo he did not apply to the question about whether he had been known by any other names
·The applicant said to his migration agent that he ‘…did not even think of declaring I had any other names. I am deeply regretting this incident and it was unintentional error from ignorance and inconsiderate of me.’
·He regrets what he did but he ‘never’ intentionally provided false or misleading information to deceive Australian immigration
·He has ‘nothing but regret’
In summary, referring to the information provided in the 2 September 2020 written submission, the applicant was born in 1982 as Tae Myoung, was known as Myoung Gyo since he was a ‘young boy’, filed a report to change his name and got a passport in 2008 in the name Myoung Gyoo, then a passport in the name MyoungGyo in 2013 after changing his name a second time, and renewed the passport issued in 2013 in the name MyoungGyo in 2020 without changing his name.
The relevant visa application in this case, for the purpose of addressing the material issue on review, is the subclass 500 visa that was refused on 22 September 2021. However, the history of the applicant’s different names and that he did not declare that he had had a previous visa cancelled for non-compliance with visa conditions in Australia previously, goes to his credibility.
The Tribunal does not accept the applicant’s excuse as to why he did not provide information about other names he had been known as when he applied offshore for the student visa in 2013. He had very recently changed his name, on his evidence by filing an ‘administrative litigation to the Family court’ in Korea, after discussions with his mother. He said at the hearing that his mother had told him that he needed to change the name for superstitious reasons after he got back to Korea toward the end of 2012. This has the complexion of a significant event and is, quite plainly, a change of name. The change of name should have been disclosed in the 2013 visa application and any subsequent visa applications, regardless of the reason for the change.
The applicant’s claim that in 2013 the education agent did not ask him the question relating to whether he had been known by a previous name, is considered to be an excuse made up after the event and nothing more. Nor does the Tribunal accept that in 2020 the applicant unintentionally left the information out of the subclass 500 visa application on review, or that he unintentionally did not declare that he had previously not complied with Australian visa conditions.
The applicant did not impress the Tribunal as particularly credible when giving his oral evidence at the hearing about incorrect, or false or misleading answers in his visa applications. He gave some evidence spontaneously, but at other times was variously vague and non-responsive to questions. For example, when he was asked for details about his name change relating to the lost and renewed passports in 2012/2013, and information about his ex-wife, their marriage and divorce, he frequently said he couldn’t remember.
At the Tribunal hearing, the applicant was referred to an answer he had given the 2020 student visa application (referred to later in this decision in the ‘Visa history’ section), ‘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?’ and he was reminded that he had answered ‘no’. The applicant was asked why he answered ‘no’. He said he did not hear the question, it was repeated and he responded, ‘My ex-wife filled in the form’. The applicant was asked, ‘So it’s your ex-wife’s fault that you didn’t provide the correct answer in your visa application?’ He responded, “I think because it happened a long time ago, I was not aware of that when I was completing the form’.
However, earlier in the hearing, he had been asked questions relating to the period in 2013 when the applicant was in Korea:
‘You said before you knew there was a 3 year cancellation period when your visa was cancelled in 2012?’, answer, ‘Yes.’
When you decided you wanted to come back to Australia as a student, did you check whether you could apply?’, answer, ‘No.’
So there was a three year exclusion, but you thought ‘I’ll just apply and see what happens’. Is that what you thought?’, answer ‘Yes. I thought that.’
‘Did you also think it might be not be a good idea to disclose you’d had a visa cancelled to help your application?’ answer, ‘No, that didn’t come to my mind. My relationship with my parents deteriorated significantly, so I just wanted to get away.’
The Tribunal does not accept that the applicant was unaware, at the time the 2020 student visa application was made, that he had had a visa cancelled (in 2012).
The applicant was asked at the Tribunal hearing if he was claiming any compelling, or compassionate or compelling, circumstances as described in PIC 4020(4) that would justify the granting the visa. He had already said earlier that he wanted to leave Korea because He responded that he found staying with his family ‘unbearable and thought he could ‘simply seek refuge in Australia’ but that he didn’t know would get this ‘big’. The applicant added that he had a shop and a marriage in Korea, but nothing went well, so he tries ‘not to remember the past.’
The applicant claims to have been known as, and called, MyoungGyo Kim since he was a young boy, but there is no probative evidence on the Department or Tribunal file to support the claim that from 1982 to 2013 he was known as MyoungGyo Kim. The applicant has, travelled on and provided a copy of the passport he held from 2008 to 2013 in the name Myoung Gyoo Kim, so for that period, at least, it appears he was not known as MyoungGyo Kim.
It was pointed out, in the written submission dated 2 September 2020, in response to the Department’s s.57 natural letter, that the applicant’s name ‘was written as KIM Myoung Gyoo’ in the letter, relating to the 2020 student visa application. The Tribunal acknowledges that the applicant used the name Kim MyoungGyo and not Kim Myoung Gyoo in the 2020 student visa application; and that he used Kim Myoung Gyoo in his first 417 visa application, but not the second 417 visa application made in 2013, or any subsequent visa applications.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
In the Department file for this case, the 2020 student visa application, the following question and answer sequences appear in the online application form generated on 30 April 2020:
Other names / spellings (at page 3 of 20)
Is this applicant currently, or have they ever been known by any other names?
No
,,,
Visa history (at page 14 of 20)
Has the applicant, or any person included in this application, held or currently hold a visa to Australia or any other country?
Yes
Give details: ETA, Student visa, Working Holiday Visa to Australia.
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?
No
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?
No
A history of matters relating to the applicant’s non-declarations in the visa application that is the subject of this review, and the earlier 2013 application, has been detailed above. The Tribunal has given reasons why it is not accepted that the applicant provided, or omitted to provide, the relevant information unintentionally.
The Tribunal makes the following findings:
·There is before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth:
o‘information that is false or misleading in a material particular’ as defined in PIC 4020(5), i.e. information that is:
§false or misleading at the time it was given, and
§relevant in a material particular to the assessment of the GTE criteria, as required in cl.500.212 of Schedule 2 to the Regulations, relating to the applicant’s previous visa history,
·in relation to the visa application or a visa held in the 12 months before the visa application was made.

Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
The applicant was reminded, at the beginning of the Tribunal hearing, and provided with an opportunity later in the hearing, to indicate whether he was claiming that there are reasons why the requirements of PIC 4020(1) should be waived. The applicant’s response has been included above. The Tribunal is satisfied that he is not claiming any of the matters in PIC 4020(4) relating to the waiver.
Therefore the requirements of PIC 4020(1) should not be waived.
Conclusion
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217(1).
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Jennifer Cripps Watts
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s 5 Interpretation
(1) In this Act, unless 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.
…

[2022] AATA 876

22 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction