Kim (Migration)

[2018] AATA 4232

Kim (Migration) [2018] AATA 4232 (20 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Heung Gyu Kim
Ms Ji Yeon Jung

CASE NUMBER:  1709654

DIBP REFERENCE(S):  BCC2015/2031328

MEMBER:K. Chapman

DATE:20 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 119 (Regional Sponsored Migration Scheme) visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 20 September 2018 at 9:33am

CATCHWORDS
MIGRATION – Cancellation – Employer Nomination (Migrant) (Class AN) visa – Subclass 119 (Regional Sponsored Migration Scheme) – incorrect answers – failed disclose criminal record – family circumstances in home country – funding parent’s medical treatment – parent’s health insurance – close proximity with parents –  brother’s family support – applicant’s physical injury – ability to work – access to mental health treatment – multiple incorrect answers – difficulty in obtaining accommodation – best interest of children – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109

CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Maioha v Minister for Immigration and Border Protection (2018) FCA 1016
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 first named applicant’s Subclass 119 (Regional Sponsored Migration Scheme) visa under s.109(1) of the Migration Act 1958 (‘the Act’).

2. The first named applicant, Mr Heung Gyu Kim (hereafter ‘the applicant’), is a forty three year old national of South Korea. The second named applicant, Ms Ji Yeon Jung, was previously married to him. According to the delegate’s decision, on 22 February 2004 the applicant was apprehended by United States authorities in possession of night vision goggles and a cell phone, being suspected of attempting to smuggle Korean nationals across the USA/Canada border. The applicant was convicted of ‘Improper Entry by Alien’, sentenced to 4 months imprisonment and was deported from the United States on 17 July 2004.

3. The applicant’s conviction and deportation were not declared in five visa applications made in relation to him between 2008 and 2012 (including his application for the Subclass 119 visa made on 27 June 2012 and some applications where he was a secondary applicant), nor on seven incoming passenger cards when he made entry into Australia. The delegate cancelled the visa on the basis that the applicant had not complied with section 101(b) of the Act in that he failed to disclose his criminal record from the United States and in doing so incorrect answers were given in the aforementioned five visa applications.

4. On 13 March 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 119 visa on the basis that he failed to comply with section 101 of the Act. He responded to the NOICC by way of a submission on 29 March 2017. On 20 April 2017, the delegate cancelled the applicant’s Subclass 119 visa. On 3 May 2017, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with his application.

5. For the purposes of the Tribunal’s jurisdiction, the only decision before it is that with respect to the applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

6. The applicant appeared before the Tribunal on 5 September 2018 to give evidence and present arguments. He initially wished to call one witness to provide oral evidence, then subsequently indicated he did not wish to call any witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicant confirmed he understood the interpreter and that he was well enough to give his evidence. The applicant was represented in relation to the review by his registered migration agent. Pre-hearing written submissions and evidence were submitted to the Tribunal and have been duly considered.

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

   ISSUES AND LAW

8. The issues in the present case are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

9. 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 entry 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.

10. 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 and 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.

11. By virtue of s.107A of the Act, the possible non-compliances that may be specified pursuant to s.107 include non-compliances in respect of any previous visa held by a person.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence at the review hearing

12. The applicant’s oral evidence to the Tribunal may be summarised as follows. He was invited to comment upon the NOICC sent to him by the Department and his response to it. The applicant declined to do so. He confirmed he had read the delegate’s visa cancellation decision. The applicant advised that he regretted providing incorrect information in the visa applications. He does not want to return to South Korea after ten years in Australia and indicated this would cause family issues for him. 

13. The Tribunal raised with the applicant that the Departmental delegate’s visa cancellation decision, a copy of which he provided with his application for review, indicates that he was detained on 22 February 2004 by United States authorities in possession of night vision goggles and a cell phone whilst being suspected of involvement in people smuggling across the United States/Canada border, he received a criminal conviction in the United States for ‘Improper Entry by Alien’, he received a sentence of four months imprisonment in respect of that conviction and he was deported from the United States following that conviction. When asked if the aforementioned information is accurate, the applicant replied that it is correct, however he denied involvement in people smuggling, admitted being caught for improper entry and noted he was given due punishment for this. 

14. The Tribunal raised with the applicant that the Departmental delegate’s visa cancellation decision indicates the above information regarding his conviction and deportation were not declared in visa applications on his behalf, or by him, which were made on 25 July 2008, 30 January 2009, 11 March 2011, 27 June 2012 and 12 October 2012. When asked if the aforementioned information is accurate, the applicant confirmed that it is. The Tribunal raised with the applicant that the Departmental delegate’s visa cancellation decision, certain pre-hearing information submitted by him, and his oral evidence tends to suggest that the ground for cancellation of his visa exists in that incorrect answers have been given or provided, inviting his comment. The applicant replied that the facts as recorded are true, adding that he did not intend to mislead the Australian Government. He maintained that he didn’t advise his then wife (the second named applicant) of his criminal past and he kept on maintaining his initial lie on subsequent occasions. The applicant advised that he has no other criminal convictions in any country nor has he been charged with any criminal matters that are pending.

15. The Tribunal raised with the applicant that the Departmental delegate’s visa cancellation decision indicates that he failed to declare his conviction on incoming passenger cards when entering Australia on seven instances between 17 November 2007 and his most recent arrival on 3 January 2017. When asked if the aforementioned information is accurate, the applicant confirmed that it is. The Tribunal raised with the applicant that the Departmental delegate’s visa cancellation decision, certain pre-hearing information submitted by him, and his oral evidence tends to suggest that his failure to declare his conviction on incoming passenger cards demonstrates other instances of con-compliance by him and that these matters might tend to weigh in favour of cancelling his visa, inviting his comment. The applicant accepted that he failed to declare his conviction on his passenger entry cards indicating this has been ‘accruing over the period.’ The Tribunal raised with the applicant that his failure to declare his conviction, imprisonment and deportation from the United States to Australian authorities might tend to weigh in favour of cancelling his visa, inviting his comment. The applicant declined to comment.

16. The Tribunal raised with the applicant that his failure to declare his conviction, imprisonment and deportation from the United States to Australian authorities in various visa applications and incoming passenger cards might tend to suggest that the decisions to grant him Australian visas and immigration clear him were based partly on incorrect information and this might tend to weigh in favour of cancelling his visa, inviting his comment. The applicant replied that there is nothing for him to say about that. The Tribunal raised with the applicant that his failure to declare his conviction, imprisonment and deportation from the United States to Australian authorities over a lengthy period of time might tend to weigh in favour of cancelling his visa, inviting his comment. The applicant replied that he had nothing to say.

17. When asked by the Tribunal to outline the status of his relationship with the second named applicant, Ms Jung, the applicant advised that they married in South Korea in 2006. In 2007 they both came to Australia holding a Student visa (the applicant was the secondary visa holder). The second named applicant studied at university and he worked as a tiler. Once the second named applicant graduated university as a dental technician they wanted to obtain permanent residence however ‘it didn’t work out’. In 2013, they moved to Townsville so he could apply for the Subclass 119 visa as a tiler. In 2014, they divorced in South Korea. The applicant advised that he believes the second named applicant is now residing in Sydney. He confirmed that he had been in contact with her in connection with the review application as he required some of her particulars. The applicant is not sure what the second named applicant is doing in Sydney. He last saw her in person in South Korea at the time of their divorce.

18. When asked by the Tribunal if he had spent lengthy periods apart from the second named applicant since he arrived in Australia, the applicant responded that when they first arrived they went to Perth but he secured work in Melbourne so he travelled between the two cities throughout 2008 and 2010. He stated they had no other periods apart. The applicant indicated he has returned to South Korea on two or three occasions since being granted the Subclass 119 visa. These visits have been for durations of around three to four weeks.

19. The applicant currently works as a tiler. He commenced this occupation in Australia in 2008 after acquiring the necessary skills in this country. After three to four years work experience he worked for himself. He moved to Townsville to acquire the Subclass 119 visa. The applicant explained that he was the general tiling engineer for a company and worked on projects at hospitals, Police stations, Government buildings and private houses. The applicant is employed by another person now in Brisbane and due to a traffic accident in 2016 he cannot work as much as before. He only accepts contracts for work when he can. The applicant works around three to four days per week and his annual income is approximately $70,000 net. In some years he has earned less and he is not quite sure of his most recent taxable income. After his visa was cancelled the applicant’s company was taken over by Mr Jinmoo Kim. The applicant does not work for Mr Jinmoo Kim, rather he takes contracts from acquaintances.

20. The applicant resides in Sunnybank Hills and rents a room in shared accommodation with four persons from the landlord’s family and another four persons. His rent is $130 per week. Prior to his car accident the applicant described playing badminton and golf. He now only occasionally plays badminton and performs light stretches in the gym. He still socialises with friends at the badminton and golf clubs. The applicant drives a vehicle and performs his own shopping.

21. The Tribunal notes that a Certificate pursuant to s.375A of the Act dated 26 May 2017 is contained in Departmental file BCC2015/2031328. It is signed by a delegate of the Minister and the Secretary. The Certificate indicates disclosure of certain material would be contrary to the public interest because of the following reasons:

    ·‘Folios 1-9, 14, 16, 18, 32, 34, 36-48, 51, 53, 59, 60, 104, 105, 116 and 149-157 may contain information identifying officers of the Department of Immigration and Border Protection, other visa holders, and/or information relating to third parties who might have provided information to the Department’;

    ·‘These folios may include identifying and contact details of these officers and third parties’;

    ·‘Throughout the visa cancellation process care has been taken not to disclose this information to the client’; and

    ·‘If these details were released there is a risk retribution might be sought against those involved in the cancellation of the visa.’

22. During the review hearing, the Tribunal provided a copy of the s.375A Certificate to the applicant and invited submissions upon its validity. The Tribunal provided an adjournment for the applicant to consider this matter. Following the adjournment, the representative submitted his concern regarding the applicant being referred to as a ‘client’ in the Certificate and noted that the applicant had instructed him to continue, acknowledging the implications of the Certificate regarding non-disclosure of information. After consideration of the aforementioned submissions, the Tribunal advised it held the preliminary view that the Certificate is valid given public interest grounds are specifically stated (in particular, regarding the risk of retribution). Accordingly, the Tribunal did not provide the full material to the applicant, but provided the ‘gist’ of the material to him at the review hearing.

23. The Tribunal advised that the ‘gist’ of the material contained in Departmental file BCC2015/2031328 under cover of the Certificate is as follows:

    ·allegations from a member of the public that the applicant failed to declare his deportation from the United States (these allegations led the Department to make enquiries in relation to these matters), he submitted forged documents to the Department, he had a false relationship with Ms Ji Yeon Jung for immigration purposes and they both have been involved in criminal activity;

    ·Departmental correspondence in relation to liaison with investigative agencies, including with regard to his conviction in the United States, which indicates that he was detained on 22 February 2004 by United States authorities in possession of night vision goggles and a cell phone whilst being suspected of involvement in people smuggling across the United States/Canada border (noting that he was not charged with a people smuggling offence);

    ·confirmation from United States authorities that he was convicted of ‘Improper Entry by Alien’ on 24 February 2004, sentenced to 4 months imprisonment and deported from the United States on 16 July 2004;

    ·information relating to him being searched by Australian authorities when departing Australia on 26 December 2016 with nothing adverse being found;

    ·information confirming his former wife, the secondary visa applicant, is not an Australian citizen;

    ·confirmation that a previous representative was acting for him; and

    ·Departmental administrative records regarding his visa status.

24. The Tribunal then raised with the applicant some of the above information, which might be adverse and of relevance to the review, pursuant to the provisions of s.359AA of the Act. For completeness, the Tribunal notes that the portions of above the information not raised with the applicant in this manner are not adverse and relevant to the review and accordingly no weight has been placed upon them in any adverse fashion. The Tribunal raised the following information with the applicant using the s.359AA procedure:

    ·allegations from a member of the public that the applicant failed to declare his deportation from the United States (these allegations led the Department to make enquiries in relation to these matters), he submitted forged documents to the Department, he had a false relationship with Ms Ji Yeon Jung for immigration purposes and he has been involved in criminal activity;

    ·Departmental correspondence in relation to liaison with investigative agencies, including with regard to his conviction in the United States, which indicates that he was detained on 22 February 2004 by United States authorities in possession of night vision goggles and a cell phone whilst being suspected of involvement in people smuggling across the United States/Canada border (noting that he was not charged with a people smuggling offence); and

    ·confirmation from United States authorities that he was convicted of ‘Improper Entry by Alien’ on 24 February 2004, sentenced to 4 months imprisonment and deported from the United States on 16 July 2004.

25. The Tribunal indicated that the above information is relevant to the review as it tends to suggest that the applicant has been involved in dishonest behaviour, has failed to advise Australian authorities of his criminal past and it casts doubt upon his credibility. The Tribunal indicated that if it were to rely upon the s.359AA information it would be the reason or part of the reason to affirm the decision under review. The applicant confirmed that he understood why the information is relevant to the review. The applicant was offered an adjournment before commenting on or responding to this information, however he chose to respond immediately. The applicant indicated that he deeply regretted his false judgement relating to improperly entering the United States in 2004 and how this has adversely affected his life in Australia. He apologised for failing to advise the Australian authorities of his past when first applying for an Australian visa, for not rectifying his mistake and for repeating the mistake on several occasions. The Tribunal has very carefully considered the applicant’s response to the s.359AA information.

26. When asked by the Tribunal to outline his present circumstances, the applicant advised that if his visa is not restored he will need to start over in South Korea. He anticipates difficulties finding a job there due to the economic situation. He is worried about the financial situation of his family in South Korea as he and his brother support their ill parents there. The applicant advised that he uses his tiling skills to support his parents and, as his brother has two children, he provides the bulk of this financial support. The applicant is worried if he returns to South Korea that he won’t be able to support his family financially as much as he presently does.

1. The applicant outlined that his father retired from the workforce ten years ago. He suffers cancer and has received chemotherapy. His mother had a back operation due to a slipped disc and her mobility is apparently restricted. The applicant advised that the South Korean Government does not provide much support to his parents so he and his brother do. The applicant indicated his brother is under pressure to support his own children and therefore cannot support his parents as much as he would like. The applicant confirmed to the Tribunal that his brother is an engineer of around twenty years experience, although he is not sure of his qualifications. The applicant maintained that even though his brother is an engineer he is limited in the support he can provide his parents as he must bring up his own two school aged children. When asked by the Tribunal who cares for his parents on a day to day basis, the applicant responded that they are still independent as far as mobility, adding that they are old and to get assistance for them would be difficult. When asked by the Tribunal if the South Korean Government provided any medical treatment for his parents, the applicant responded that he didn’t think so. When asked by the Tribunal if there are Government run medical facilities in South Korea the applicant replied that no Government assistance was provided for his mother’s operation or father’s chemotherapy. The applicant subsequently indicated his parents have health insurance which assisted with their medical care although he also made a contribution.

2. When asked by the Tribunal to further outline the background of his family in South Korea, the applicant explained that his father was an office worker for around thirty years. He did not think he had the equivalent of superannuation. He was not sure if his parents receive a state pension. His parents live together now in a small apartment, having downsized after previously living in a house in Seoul. The applicant confirmed that he previously stayed with his parents on visits there from Australia but maintained he could not do so now because there is not much space in their current apartment, he does not have a job and staying with them would cause a financial burden to them. The applicant indicated he has last stayed with his brother during school years but not since he was married. The applicant confirmed to the Tribunal that he had a good relationship with his parents and brother. The Tribunal indicated that it might have difficulty accepting his family would not provide him with a place to stay if he returned to South Korea, inviting his comment. The applicant replied that he assumes they will provide him with accommodation because they are family but he feels as a person over forty years of age, having lived in Australia for over ten years and staying with them without work, would make him feel distraught. The applicant confirmed to the Tribunal that he has no family members in Australia. He confirmed to the Tribunal that he had never failed to comply with any other visa requirements or immigration matters, other than previously canvassed, whilst he has been in Australia. Apart from minor traffic offences, the applicant indicated he has not breached any laws in Australia.

3. When asked by the Tribunal if he ever had another Australian visa refused or cancelled, the applicant replied that he had not. The Tribunal raised with him that the delegate’s visa cancellation decision refers to him receiving a consequential visa cancellation on 29 July 2011 and invited his comment. The applicant responded that he was not able to recall this. When asked by the Tribunal if he was cancelled as a secondary visa holder on one of the second named applicant’s Student visas, the applicant replied that he cannot remember clearly. The Tribunal raised with the applicant that it seemed curious he couldn’t remember having his visa cancelled in connection with his then wife’s visa, inviting his comment. The applicant maintained that he could not remember and the representative submitted that as this was a consequential cancellation he may not know about it. The applicant confirmed to the Tribunal that he was still married to the second named applicant on 29 July 2011. The Tribunal raised with the applicant that it appeared curious that if married to his wife and her visa was cancelled he wouldn’t know about it, inviting his comment. The applicant replied that if it happened in 2011 he may have been in Melbourne then. He added that they discussed important matters and would likely have discussed it but he cannot remember. The Tribunal raised with the applicant that his lack of knowledge regarding the aforementioned visa cancellation might tend to suggest that he was not in a genuine relationship with the second named applicant, inviting his comment. The applicant denied this. The representative submitted there may be numerous reasons for the visa cancellation and the applicant not knowing. He indicated he may wish to provide further submissions, however ultimately he declined to do so.

4. When asked by the Tribunal if he had made any contribution to the Australian community, the applicant replied that he had not but if his visa is restored he plans to run his company, hire a number of Australian citizens and contribute to Australian society. The Tribunal raised with the applicant that if his visa is cancelled and he does not hold a valid visa he would be an unlawful non-citizen subject to detention, it would be difficult for him to make visa applications in Australia, he would be liable for removal from Australia and he would likely face difficulties obtaining another Australian visa in the future, inviting his comment. The applicant replied that if his visa is cancelled he will comply with Australian Government directions and not stay unlawfully.

5. The Tribunal raised with the applicant that if his visa is cancelled the second named applicant will have her visa cancelled by operation of s.140 of the Act, inviting his comment. The applicant replied that he has already discussed this with her and she advised she would comply with Australian Government direction if her visa is cancelled. When asked if there were any international obligations concerning his case, the applicant replied that he was not sure. He confirmed that he had no children and no family residing in Australia.

6. When asked by the Tribunal if there are any other relevant matters, including issues of hardship, that he wished to raise, the applicant responded that he had mentioned these previously. He added that if he cannot stay in Australia he will return to South Korea but this will cause difficulties with his family’s financial situation. The applicant indicated that his two nieces know him as the uncle from Australia and he is anxious that if he returns he may be seen as a failure.

7. The Tribunal raised with the applicant that his representative submitted data concerning cancellations of other types of visas and asked the relevance of this to his case particularly given it does not refer to him personally or to cancellations of Subclass 119 visas. The applicant replied that a case concerning a New Zealand woman was similar to his in that she has a child and he has ageing parents and he cannot work. The representative was invited to clarify and indicated he referred to Court authority in written submissions and this is the matter raised by the applicant. He added that cancellations of the Subclass 119 visa are uncommon, most are for Student visas as shown in the data and cancellation would be too harsh in the present circumstances.

8. The Tribunal raised with the applicant that his representative submitted a news article regarding working hours in South Korea and asked the relevance of this to his case particularly given it does not refer to him personally. The applicant replied that he had a car accident two years ago and works reduced hours in Australia. The article points out that working hours in South Korea are longer than in other countries and with his medical condition he wouldn’t be able to assimilate to those conditions. When asked by the Tribunal why he cannot look at performing other work in South Korea, the applicant responded that he heard the job market won’t accept old people (he is aged forty three years), he only has skills to be a tiler and he cannot find a new occupation.

9. The Tribunal raised with the applicant that his representative submitted a copy of reports by Ms Joanne Yang, an accredited Mental Health Clinician, dated 4 July 2018, 8 July 2018 and 1 September 2018 and asked how he came to see her. The applicant indicated that due to his language limitation he found her through an acquaintance as he was anxious about the review hearing. The applicant confirmed that he saw Ms Yang on three occasions. He indicated he recently started taking sleeping medication, the weekend prior to the review hearing. When asked if his visits to Ms Yang and sleeping medication were recent developments, the applicant indicated that they were because his anxiety increased as the review hearing approached. The applicant confirmed to the Tribunal that he has never seen a psychologist or psychiatrist prior to seeing Ms Yang. When asked if he is currently receiving any other treatment for mental health the applicant replied that he is not. When asked if there is any reason he could not access mental health services or treatment in South Korea, the applicant replied that if there was an issue he can receive treatment, adding that if there is a need he will have to seek such treatment.

10. The Tribunal raised with the applicant that his representative submitted a copy of reports by Dr Malcolm Wallace of 2017 and asked how he came to see him. The applicant explained that after his car accident he went to see him for a compensation claim. The applicant advised that he received $35,000 in compensation which was paid to him in early 2018. He confirmed to the Tribunal that he had approximately $50,000 in savings currently. The applicant advised the Tribunal that he had seen Dr Wallace only once. He explained that he was ‘rear ended’ in his car accident whilst stationary in traffic. The applicant confirmed that he does not take prescription medication for his back injury, rather using stretching and heat packs when required. The applicant takes the ‘over the counter’ pain relief Panadol on occasion, last consuming it around two to three weeks ago. When asked if he is currently receiving any other treatment for his back, the applicant indicated other than conducting stretches at the gym he is not. When asked if there is any reason he could not access treatment for his back in South Korea, the applicant acknowledged that he will be able to access such treatment if he needs to. The Tribunal raised with the applicant that the report of Dr Wallace dated 22 September 2017 indicates that he performed office work in South Korea prior to coming to Australia and asked him why he could not perform such work again. The applicant replied that it will be hard for him to find a job in a related field, he cannot work for the same company and similar companies prefer younger workers. The applicant confirmed that he had only worked as a tiler since coming to Australia. He also advised that his English language ability is limited and he received a score of 4.5 in the IELTS test in 2012. The applicant confirmed that his former tiling business, run through the company H Kim Pty Ltd, is now run by Mr Jinmoo Kim and that he has not had involvement in that company since his visa was cancelled. The applicant also confirmed he now works as a sole contractor.

11. The Tribunal asked the applicant if he wished to make any comment upon the third party statements he submitted to it. He indicated that these statements came from colleagues over the past ten years and he hopes they assist his review application so he can continue living and working with them. The applicant confirmed that he had no further evidence to provide in his case. When invited to call the one listed witness, Mr Jinmoo Kim, the applicant described him as being very close with him, they used to work together and they are like brothers (although they are not related by family). The applicant and representative then requested an adjournment to consider whether they needed to call Mr Jinmoo Kim given that he had now provided a written statement. An adjournment was duly granted, following which the applicant confirmed that he did not wish to call Mr Jinmoo Kim, or any other witness, in his case. The applicant confirmed the aforementioned and accordingly no third party witnesses gave oral evidence in the review hearing.

12. The applicant concluded his oral evidence by indicating that he is afraid that his mistake was not rectified early enough, his return to South Korea would disappoint his family and acquaintances, and his livelihood would be in danger. He asked to be given another chance in Australia and if so he would teach others to learn tiling and contribute to society. The Tribunal raised with the applicant that his evidence is that he is a forty three year old, native Korean speaker, who previously worked in South Korea, has family in South Korea and has significant savings, which are matters that must be carefully considered, in conjunction with other matters raised in this review. The applicant indicated he had no further evidence to provide.

13. The representative gave oral submissions throughout the review hearing which may be summarised as follows. During the initial portion of the hearing the Tribunal discussed with him the particulars of a pre-hearing written submission in which he takes issue with the delegate not referencing s.107A of the Act in the visa cancellation decision and NOICC (which concerns information in relation to prior visas held by the applicant). The Tribunal raised to his attention that it might have difficulty accepting that omission of reference to s.107A, when the applicant appeared to be put on notice of the relevant grounds in the NOICC, invalidates the s.107 notice, inviting his comment. The representative confirmed that his submission is not that the notice is defective, rather the delegate may have been unduly influenced by the number of times incorrect information was provided and therefore their decision was too harsh (his written submissions also suggest that incorrect information provided in relation to visas other than the Subclass 119 are only relevant to the exercise of discretion). The representative added that ‘maybe’ the applicant did not have a fair opportunity to make full submissions to the delegate. The Tribunal raised with the representative that it might have difficulty accepting that the applicant was denied a fair chance of making submissions, inviting his comment. The representative responded that as s.107A was not mentioned in the body of the Notice, only enclosed with it, the delegate must have only considered incorrect information in relation to visas other than the Subclass 119 in relation to the discretion in r.2.41.

14. The representative also made submissions at the conclusion of the review hearing which urged the Tribunal to consider the judicial authority in Maioha v Minister for Immigration and Border Protection (2018) FCA 1016 in relation to purported financial hardship faced by the applicant if he departs Australia. The representative also contended that the applicant had been candid during the review hearing and admitted wrongdoing, the Tribunal must make a decision proportionate to the circumstances of the applicant, the applicant will contribute to Australian society if permitted to stay and that if allowed to remain he will be subject to a character test for citizenship purposes (or may expose himself to further visa cancellation if he transgresses). In conclusion, the representative referred to his written submissions and contended that the applicant understands the gravity of his situation but requested the discretionary power to be exercised in his favour. Both the applicant and the representative confirmed to the Tribunal that no further submissions or evidence were to be provided in the review. The Tribunal has carefully considered all evidence and submissions made in this matter.

15. The Tribunal notes that it had the benefit of observing the applicant provide his oral evidence. Whilst he admitted to wrongdoing in matters which are not in dispute (such the existence of his criminal record and the provision of incorrect information in relation to it), the Tribunal observed him to deliver other portions of his oral evidence in a defensive and evasive fashion. For example, his oral evidence concerning his family circumstances in South Korea (in particular with regard to the funding of his parents medical treatment and their financial circumstances, his brother’s ability to assist their parents, his own ability to secure accommodation with his family and his ability to obtain work there), his current financial position (in particular with regard to his receipt of compensation), and his limited knowledge of the second named applicant’s visa situation which linked to his own, displayed the aforementioned characteristics. On balance, the Tribunal formed the view that in relation to potentially adverse matters where the applicant had not been faced with irrefutable evidence (such as his criminal record and the provision of incorrect information in relation to it), he was not forthcoming in his oral evidence. It is also worth pausing to reflect that the applicant’s criminal past only came to light when Australian authorities obtained adverse information from a third party, which is referred to in the s.359AA information, which led to further enquiries. Following careful consideration, due to these matters, the Tribunal developed some concerns with the applicant’s credibility.

    Did the notice comply with the requirements in s.107?

16. Section 107 of the Act is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

17. The Tribunal notes that the NOICC dated 13 March 2017 was sent to the applicant by registered post. He responded to the NOICC on 29 March 2017 through a previously appointed registered migration agent. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage the provisions of s.107 of the Act. The Tribunal does not accept that the applicant was denied a meaningful chance to respond to the NOICC by the omission of reference to s.107A in the text of the notice given that it clearly provides particulars of all instances of possible non-compliance with s.101(b) of the Act and that a fulsome written response was provided by him. The Tribunal does not accept that there is any error with the NOICC and notes the representative ultimately conceded that it is not a defective notice.

18. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 of the Act complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

19. The Tribunal must consider 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. The non-compliance identified and particularised in the s.107 notice was non-compliance with section 101(b) of the Act.

1. The s.107 notice particularises possible non-compliance with s.101(b) of the Act by the applicant in relation to a Student visa application of 25 July 2008 in which he was the secondary applicant, a Student visa application of 30 January 2009 in which he was the secondary applicant, a Student visa application of 11 March 2011 in which he was the secondary applicant, the Regional Sponsored Migration Scheme Subclass 119 visa application of 27 June 2012 in which he was the primary applicant, and a Student visa application of 12 October 2012 in which he was the primary applicant. It indicates the applicant incorrectly answered questions in those visa applications in relation to being convicted of a crime or offence in any country, being removed or deported from any country, or being involved in any activity or being convicted of any offence relating to the illegal movement of people to any country.

2. The Tribunal notes that the applicant admitted to being convicted in the United States of ‘Improper Entry by Alien’, receiving a sentence of four months imprisonment in respect of that conviction and being deported from the United States as a result. Following careful consideration, the Tribunal finds that the non-declaration of these matters in the aforementioned visa applications constitutes the provision of incorrect answers in the manner particularised in the s.107 notice. That is, the applicant incorrectly answered the particularised questions in relation to being convicted of a crime or offence in any country, being removed or deported from any country, or being involved in any activity or being convicted of any offence relating to the illegal movement of people to any country.

3. For completeness, the Tribunal notes that the applicant denied being involved in people smuggling and it accepts he did not receive a criminal conviction for such an offence. However, the applicant did not deny the circumstances of his apprehension in the United States as put to him during the review hearing (for example, being in possession of night vision goggles and a cell phone). The s.107 notice refers to the circumstances of the applicant’s apprehension including suspicion of being involved in people smuggling but does not allege he was convicted of such an offence. On balance, the Tribunal is satisfied that the answers provided by the applicant as particularised in the s.107 notice are incorrect.

4. Therefore, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

5. 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).

6. 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;

   ·     the content of the genuine document (if any);

   ·     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;

   ·     the circumstances in which the non-compliance occurred;

   ·     the present circumstances of the visa holder;

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

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

   ·     the time that has elapsed since the non-compliance;

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

   ·     any contribution made by the holder to the community.

7. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

   There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

8. The Tribunal has duly considered the applicant’s response to the NOICC dated 28 March 2017 and notes that it seeks to diminish his culpability in relation to his criminal history in the United States, indicate that he hid this history from the second named applicant, portray his criminal past as an isolated occurrence, detail his contribution through his business which employs one person, notes he “has no close ties at all to Korea”, contends he would face hardship if he departs Australia and requests that discretion be exercised in his favour. Additionally, the Tribunal notes that much other evidence has been advanced as to why the applicant’s visa should not be cancelled. On balance, the Tribunal finds that the response of the applicant to the NOICC dated 28 March 2017 weighs neither in favour nor against cancellation of his visa given that more contemporary evidence and submissions are before the Tribunal. These are referred to in greater detail in this decision record.  

9. The correct information in relation to the questions in the relevant visa applications previously described is that the applicant has been convicted of a crime or offence in any country, he has been removed or deported from any country, and he has been involved in any activity or been convicted of any offence relating to the illegal movement of people to any country. The non-declaration of the applicant’s conviction in the United States for ‘Improper Entry by Alien’, receipt of a sentence of four months imprisonment in respect of that conviction and his deportation from the United States as a result, in five separate visa applications over the period 2008 to 2012, are in the view of the Tribunal very serious matters. Such circumstances weigh strongly in favour of cancelling the applicant’s Subclass 119 visa given the sustained nature of the provision of incorrect information.

10. The Tribunal notes that the s.359AA information makes reference to forged documents being submitted to the Department. However, this allegation is not further particularised and following careful consideration the Tribunal affords no weight to this information. Accordingly, the Tribunal finds that there is no circumstance in the present matter regarding the content of a genuine document and therefore no weight is given to that prescribed circumstance.

11. The Tribunal forms the view that the decisions regarding the applicant being granted multiple Student visas, the grant of the Subclass 119 visa and him being immigration cleared on the seven occasions outlined, were based wholly or partly on incorrect information. That is, the applicant did not advise the Department of his criminal conviction, sentence of imprisonment and deportation from the United States as previously outlined. Given that an assessment of character is critical to the grant of Australian visas and immigration clearance, had the aforementioned adverse information been known to the Department the applicant would likely not have been granted these visas and permitted entry into Australia. The Tribunal does not accept the contentions of the applicant to the contrary, including with respect to PIC 4001 and s.501 of the Act which he argues would not have prevented the grant of the visas if he had provided correct answers in his visa applications, as on balance it is likely the Department would not have granted the aforementioned visas and immigration clearance given the gravity of the applicant’s criminal conduct in the United States and its nexus with border security. Following careful consideration, the Tribunal finds that the circumstances in relation to the grant of visas and immigration clearance to the applicant weigh strongly in favour of cancelling his Subclass 119 visa.

12. The Tribunal finds that the applicant engaged in a deliberate course of conduct to conceal from the Department his criminal conviction, sentence of imprisonment and deportation from the United States in the relevant visa applications. It is worth pausing to reflect that such matters only came to the knowledge of the Department through information provided by a third party, which is outlined in the s.359AA information. That the applicant deliberately chose not to declare these adverse matters over a sustained period of time in the relevant visa applications demonstrates repeated dishonest behaviour on his part. For completeness, the Tribunal notes the oral evidence of the applicant is that he knew he had to declare the aforementioned matters in his visa applications and that in order to protect his relationship he deceived the second named applicant in relation to them. The Tribunal accepts such evidence and finds that it buttresses its findings regarding his repeated dishonesty. Following careful consideration, the Tribunal finds that the circumstances in which the non-compliance occurred weigh strongly in favour of cancelling the applicant’s Subclass 119 visa.

13. The applicant submits that his present circumstances weigh against the cancellation of his visa. He contends that his back injury and recent mental health concerns (arising from the impending stress of the review hearing) preclude him from departing Australia. The Tribunal accepts the applicant suffers from the aforementioned conditions. However, the Tribunal notes his oral evidence is that he is mobile, drives a vehicle, works (on a reduced capacity) and performs his own shopping, thus demonstrating his ability to ensure self-care. With respect to his mental health, the applicant has a therapeutic relationship of recent origin arising from stress he attributes to the review process. He commenced sleeping medication very recently and otherwise has not been prescribed medication regarding his mental health. The Tribunal notes that submissions and third party evidence make speculative reference to the applicant potentially being at risk of suicide if he returns to South Korea, however such speculation is unsupported by any medical evidence, or oral evidence of the applicant, and the Tribunal does not accept the veracity of such a claim. Regarding his back compliant, the applicant advised that he manages it through stretching, heat packs and the consumption of Panadol when required. He is not taking any prescription medication in respect of his back. Of note, the applicant confirmed to the Tribunal that he could access treatment for his mental health and back conditions if he returned to South Korea. Whilst the Tribunal finds that the applicant’s mental health and back conditions weigh against the cancellation of his Subclass 119 visa, they do so only slightly given their complexion and that he can obtain appropriate treatment in South Korea if it is required.

14. The applicant contends that he cannot return to South Korea as he will be unable to find work due to his advanced age of forty three years, limited capacity to work as a tiler on account of his back condition and weather conditions, tiling not being an occupation of prevalence, the economic circumstances in that country, and an inability to reintegrate into a culture which promotes long work hours (submitting a media article regarding long working hours in that country). The Tribunal accepts that the applicant will have less ability to work as a tiler in South Korea than he would have if he remains in Australia and that he would face an associated period of adjustment in the workforce in that country. Such matters weigh moderately against cancelling his Subclass 119 visa. However, given that he is a native Korean speaker, previously held office employment in his country of origin, has demonstrated adaptability and resilience by relocating to Australia, and has a family network in South Korea, the Tribunal does not accept that he is unemployable and would face destitution if he departs Australia. Indeed, the Tribunal notes that the applicant currently possesses $50,000 in savings which will mitigate the short term financial impacts of him returning to South Korea if his visa is cancelled. Accordingly, whilst the Tribunal accepts there will be a period of adjustment in relation to his financial and employment positions, when considering his circumstances holistically it affords in relation to these matters only slight weight against cancelling the applicant’s visa as he will not face any significant financial distress if he returns to South Korea.

15. The applicant contends he would find difficulty obtaining accommodation if he returns to South Korea. He indicated he would face shame, embarrassment and a degree of stress if he had to rely upon staying with his family members whilst not being in employment. Further, he worries about returning and residing with family members in circumstances where he is seen to be a failure and to have disappointed others. Whilst the Tribunal accepts that the applicant holds such feelings, it does not accept he would be unable to reside with family members if he returns to his country of origin for those reasons or any other. The applicant indicated to the Tribunal in his oral evidence that he anticipates his family will provide accommodation for him and that he has a good relationship with them. That evidence is accepted. Accordingly, the Tribunal does not accept that the applicant would be subject to homelessness or other accommodation crisis if he returns to South Korea.

16. The Tribunal has carefully considered the submissions raised in relation to the judicial authority in Maioha v Minister for Immigration and Border Protection (2018) FCA 1016. In that matter the Court, inter alia, found that contentions concerning the ‘basic living standards’ of the applicant had not been duly considered by the decision maker. That matter concerned a single female New Zealand national seeking revocation of a visa cancellation decision pursuant to s.501CA of the Act. Some of her circumstances were that she had a history of unemployment, no family in New Zealand with whom she was in contact, children in Australia, serious mental health issues in the context of domestic violence and a history of homelessness. The Court [at 34] held that the decision maker was required to “…give the basic living standards representations a proper, genuine and realistic consideration”. This included consideration of matters such as financial circumstances and accommodation.

17. The Tribunal accepts that it must give due consideration to the contentions of the applicant in the present matter, including with regard to his financial circumstances, accommodation and any other matter regarding basic living standards. Accordingly, the Tribunal has done so, noting that the applicant’s case must be assessed on its own particular merits which may be distinguished from those present in Maioha. For the reasons outlined above, the Tribunal finds that the applicant would have his requirements for basic living standards (including financial and accommodation aspects) met if he returns to live in South Korea. The Tribunal accepts that the applicant’s basic living standards will be different to those he currently enjoys in Australia, and might not be to his liking, however the Tribunal affords in relation to that matter only slight weight against cancelling his visa given that he is in no danger of being unable to have such basic living standards met if he returns to his country of origin. The Tribunal accepts that the applicant has lived in Australia for approximately ten years and affords this consideration moderate weight against cancelling his Subclass 119 visa.

18. The Tribunal has carefully considered written submissions on behalf of the applicant advancing the contention that r.2.41(e), directed to ‘the present circumstances of the visa holder’, should be interpreted to include consideration of the impact of visa cancellation on “…immediate family members whether Australian or not…” and it is further contended that the applicant’s nieces will suffer if the applicant departs Australia with no opportunity to derive further income in South Korea. The Tribunal addresses these contentions below in its discussion of other relevant matters. For completeness, the Tribunal notes that it has considered all submissions, and authorities raised within them, on behalf of the applicant.

19. The Tribunal has carefully considered the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act. As outlined above, the applicant admitted that he failed to declare his criminal conviction, sentence of imprisonment and deportation from the United States on seven passenger entry cards between 2007 and 2017. Given the sustained nature of this non-compliance with s.102 of the Act, the Tribunal finds that this matter weighs strongly in favour of cancelling his Subclass 119 visa.

20. The Tribunal has carefully considered whether there are any other instances of non-compliance by the visa holder. The Tribunal notes that the delegate’s decision makes reference to the applicant being subject to a s.140(1) consequential visa cancellation of his Student visa on 29 July 2011. As detailed above, the applicant’s oral evidence in relation to this matter was provided in a defensive and evasive fashion. However, on balance, the Tribunal is satisfied that the aforementioned consequential cancellation took place by operation of law and therefore it is not an instance of non-compliance by the applicant and it weighs neither in favour of, nor against, cancellation of his visa. The Tribunal notes the s.359AA information contains an allegation that the applicant and the second named applicant (his former wife, Ms Jung) were in a false relationship for immigration purposes. Given that this allegation cannot be tested, the Tribunal affords it no weight. Therefore, the Tribunal finds there are no other instances of non-compliance by the visa holder and this prescribed circumstance is given no weight either in favour of, or against, cancellation of the applicant’s visa.

21. The time that has elapsed since the non-compliance with s.101(b) has been carefully considered by the Tribunal. As previously outlined, the applicant’s non-compliance pertains to five visa applications made between 2008 and 2012. Given the effluxion of time, the Tribunal finds that this prescribed circumstance weighs against cancellation of his Subclass 119 visa. However, it weighs only slightly against such cancellation given the applicant’s repeated non-compliance over a sustained period, in combination with the non-compliance only being discovered by the Department through receipt of the s.359AA information from a member of the public. There is no evidence of any breaches of the law since the applicant’s non-compliance and the Tribunal affords this prescribed circumstance slight weight against cancellation of his Subclass 119 visa.

22. It is contended on behalf of the applicant that he has made a contribution to the community by way of previously running a tiling business, being an employer and having links with various persons in the community through work, leisure and sporting activities. The Tribunal notes that in oral evidence the applicant outlined aspirations to run a company in the future, hire Australian citizen workers and make further contributions to Australian society (including by way of educating others and being a role model). Contentions in relation to these matters are also supported by third party references which have been duly considered by the Tribunal. Further, it is contended that the specialised tiling skills of the applicant have assisted the Australian community, particularly in regional areas, and that these skills will continue to be of such assistance in the future. Following careful consideration, the Tribunal finds that the aforementioned matters weigh moderately against the cancellation of his Subclass 119 visa.

1. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to 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.

2. The Tribunal has considered 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. As outlined above, the mandatory legal consequences of visa cancellation were canvassed with the applicant at the review hearing. If the applicant’s Subclass 119 visa is cancelled and he does not hold a valid visa he will become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act. He may also be subject to s.48 of the Act which limits further specific visa applications by a person who does not hold a substantive visa and who has had a visa cancelled since they last entered the migration zone. There is no evidence before the Tribunal to suggest that the applicant would be subject to indefinite detention and be unable to be removed to South Korea. In the circumstances of the present review, the aforementioned matters weigh neither in favour of, nor against, cancellation of the applicant’s Subclass 119 visa.

3. The evidence before the Tribunal indicates that the second named applicant would be subject to a consequential visa cancellation pursuant to s.140 of the Act if the applicant’s Subclass 119 visa is cancelled. The applicant explained that his former wife will comply with any directions of the Australian Government if this situation arises. The Tribunal notes that the applicant and second named applicant are no longer married and that if a consequential cancellation arises it will do so by operation of law. Given the aforementioned matters, following careful assessment, the Tribunal finds that this consideration weighs neither in favour of, nor against, cancellation of the applicant’s Subclass 119 visa.

4. The Tribunal has carefully considered all other relevant matters, including the degree of hardship that may be caused to the applicant and his family members if his Subclass 119 visa is cancelled. As outlined above, the Tribunal accepts that some matters regarding the present circumstances of the applicant weigh against cancellation of his visa. The Tribunal also accepts there will be some hardship for him if his visa is cancelled in relation to leaving established connections in Australia, transitioning to a new working environment and living in changed circumstances which might not be as he would like (for example, by residing with family members). However, as previously noted, the Tribunal does not accept that the applicant would be unable to meet his requirement for basic living standards (including by way of financial and accommodation aspects). On balance, the Tribunal finds that the applicant would face a limited degree of hardship if his visa is cancelled and this weighs slightly against the cancellation of his Subclass 119 visa.

5. The applicant contends that if he departs Australia and returns to South Korea then his aged, ill parents will suffer financially due to his lack of income. The Tribunal accepts that his parents are aged and ill. However, the Tribunal notes the oral evidence of the applicant is that they possess health insurance, remain independent as far as mobility and have stable accommodation in a unit. As previously described, the applicant gave his oral evidence in relation to his family circumstances in a defensive and evasive fashion. Accordingly, the Tribunal has formed the view that the applicant attempted to unduly magnify the hardship that would be suffered by his parents should his visa be cancelled. The Tribunal assesses that the applicant will be able to find employment in South Korea, has substantial savings and combined with the support of his brother will be able to continue to assist his parents. He will also be in close proximity to his parents if his visa is cancelled and he returns to South Korea. On balance, the Tribunal finds that the applicant’s parents would face only a limited degree of hardship during a transitional period if his visa is cancelled and this weighs slightly against the cancellation of his Subclass 119 visa.

6. The applicant contends that his two nieces will suffer financial disadvantage if his visa is cancelled because their father (his brother) will need to divert financial resources to his parents. As previously described, the applicant gave his oral evidence in relation to his family circumstances in a defensive and evasive fashion. Accordingly, the Tribunal has formed the view that the applicant attempted to unduly magnify the hardship that would be suffered by his family members, including his two nieces, should his visa be cancelled. The Tribunal notes that the applicant’s brother is an engineer and, combined with the applicant’s particular circumstances outlined above, it does not accept that the two nieces will suffer any hardship if the applicant returns to live in South Korea. Given the aforementioned, and that if the applicant’s visa is cancelled he will be reunited with his family members including his two nieces, the Tribunal considers the best interests of these children would be served by the applicant returning to reside in South Korea in proximity to them. Accordingly, the Tribunal does not accept that any breach of the Convention on the Rights of the Child (CROC) would arise if the applicant’s visa is cancelled. Further, the Tribunal does not accept the evidence submitted by the applicant regarding these children (and their parents) suffering financial disadvantage if he departs Australia due to the credibility concerns previously identified. Accordingly, the Tribunal finds that consideration of any hardship to be faced by the applicant’s nieces (and their parents) weighs neither in favour of, nor against, cancellation of his Subclass 119 visa.

7. The Tribunal accepts that there would be some upset for the applicant, his family members in South Korea and his friends and colleagues in Australia if his visa is cancelled. This is moderated by the ability for the applicant to reunite with all of his family in South Korea if he returns to that country. On balance, the Tribunal finds the aforementioned matters weigh slightly against the cancellation of the applicant’s Subclass 119 visa.

8. For reasons previously expressed, the Tribunal finds there is no persuasive evidence before it to suggest that any international obligations would be breached as a result of the cancellation of the applicant’s Subclass 119 visa, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. The Tribunal does not accept that the cancellation of the applicant’s visa would result in any breach of the CROC with respect to the two South Korean national nieces of the applicant who reside in South Korea with their parents. Further, the Tribunal does not accept that any international obligations in relation to any member of the applicant’s family, including his elderly parents, would be breached by the cancellation of his visa. Additionally, the Tribunal does not accept that the applicant is a man of such advanced age (he is forty three years old) without family support or the ability to financially sustain himself in South Korea such as to give rise to non-refoulement obligations. Accordingly, this consideration weighs neither in favour of, nor against, cancellation of his visa.

9. The Tribunal has carefully reflected upon the circumstances both against, and in favour of, cancelling the applicant’s Subclass 119 visa. For reasons previously expressed, the Tribunal finds that the applicant engaged in a sustained dishonest course of conduct to conceal his criminal conviction, sentence of imprisonment and deportation from the United States. In doing so there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

10. Following careful consideration, the Tribunal does not accept the contention advanced on behalf of the applicant that cancellation of his Subclass 119 visa would be disproportionate in the circumstances of this matter. Further, the Tribunal has duly considered the submitted statistical evidence in relation to visa cancellations in Australia but is not satisfied that it displaces its findings in relation to the particular circumstances of the present matter. On balance, following much consideration, the Tribunal finds that the circumstances in favour of cancelling the applicant’s visa outweigh those circumstances to the contrary.

11. 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

12. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 119 (Regional Sponsored Migration Scheme) visa.

13. The Tribunal has no jurisdiction with respect to the other applicant.

    K. Chapman
    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.