Kim (Migration)

This matter concerned an appeal by Ms Kim against the cancellation of her Subclass 417 (Working Holiday) visa. The visa had been granted on the basis that Ms Kim had completed at least three months of specified work in a regional area. However, investigations by the Department of Home Affairs revealed that the business Ms Kim claimed to have worked for, MOUNTAIN LEE PTY LTD, had advised that it had not employed her. The Tribunal was therefore required to determine whether Ms Kim had provided incorrect information in her visa application, thereby constituting non-compliance with section 101(b) of the *Migration Act 1958* (Cth).

The primary legal issue before the Tribunal was whether Ms Kim had complied with section 101(b) of the *Migration Act*, which requires that no incorrect answers be given in a visa application form. This involved assessing whether the information provided by Ms Kim regarding her regional work experience was accurate, and if not, whether her subsequent explanation for the incorrect information warranted a decision not to cancel her visa. The Tribunal also considered the provisions of section 108 of the Act, which mandates the Minister (or delegate, in this instance the Tribunal) to consider any response from the visa holder and decide whether non-compliance occurred.

The Tribunal found that Ms Kim had indeed provided incorrect information in her visa application, as evidenced by the statement from MOUNTAIN LEE PTY LTD. Ms Kim acknowledged this non-compliance, attributing it to her limited English proficiency and her reliance on another individual, Mr Lee Kwang-min, who she claimed had assisted with her visa application. She expressed remorse, stating she did not intentionally falsify information and that she trusted Mr Lee. Despite these explanations, the Tribunal concluded that the incorrect information was material to the grant of the visa and that, having regard to all the circumstances, the visa should be cancelled. The Tribunal affirmed the decision to cancel Ms Kim's visa.