Kim (Migration)

This matter concerned the review of a decision to cancel the Subclass 119 (Regional Sponsored Migration Scheme) visa held by the first applicant, Mr. Kim. The dispute arose from Mr. Kim's failure to disclose a criminal conviction in the United States for 'Improper Entry by Alien', for which he received a four-month prison sentence and was subsequently deported. This conviction and deportation were not declared in multiple visa applications made between 2008 and 2012, nor on seven incoming passenger cards between 2007 and 2017. The Tribunal also noted it had no jurisdiction concerning the second applicant.

The primary legal issue before the Tribunal was whether Mr. Kim had failed to comply with his obligations under the *Migration Act 1958* (Cth) by providing incorrect answers in his visa applications and on passenger cards, thereby providing grounds for the cancellation of his visa. Specifically, the Tribunal was required to determine if the failure to declare his criminal history constituted non-compliance with sections 101 and 107 of the Act, and if such non-compliance warranted the cancellation of his visa.

The Tribunal found that Mr. Kim had indeed failed to comply with the Act by providing incorrect answers, acknowledging that the facts recorded by the Department were true. He admitted to not disclosing his criminal past to Australian authorities and accepted that this failure had been "accruing over the period." The Tribunal applied the principles outlined in sections 100 and 101 of the Act, which stipulate that an answer is incorrect even if the person did not know it was incorrect, and that visa applications must be completed without incorrect answers. Having found non-compliance under section 108, and having considered the relevant circumstances, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mr. Kim's Subclass 119 visa.