Lee (Migration)

Lee (Migration) [2023] AATA 361 (21 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bruce Lee
REPRESENTATIVE:  Mr Jai Gon Jang
CASE NUMBER:  2211524
HOME AFFAIRS REFERENCE(S):          BCC 2020/2626198
MEMBER:Kira Raif
DATE:21 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 21 February 2023 at 16:46pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information given in visa application – previous identities, visa and residence history and criminal conviction not declared – facial image comparison – onshore visa refused, unsuccessful reviews and period as unlawful non-citizen – second visa and entry during exclusion period using cousin’s passport after fraudulent alteration – second visa cancelled, criminal conviction, debt to commonwealth and second exclusion period – third visa and entry after legal change of name – discretion to cancel visa – incorrect information and visa history conceded – persecution and financial hardship in home country – unlawful work in Australia – lack of English and understanding of laws and reliance on agents – unaware of court hearing and debt to commonwealth – further applications for visas and citizenship – long residence and relationship with Australian citizen – work and community activities – possibility of applying for partner visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 106, 107, 107A, 109(1)
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248

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 to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a national of South Korea, born in September 1953. He was last granted the Resident Return visa (RRV) in October 2019. In May 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled in August 2022. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 21 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter Ms Yi. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s. 101 of the Act.
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that on 18 May 2005 the applicant made an application for a Tourist Subclass 976 visa in the name of Myung Woo Lee (dob 5/9/53). He was granted the visa and arrived in Australia on 21 May 2005. While onshore, the applicant made an application for another Tourist Subclass 676 visa on 19 August 2005. When making the application the applicant completed Form 601 in which he gave his name as Myung Woo Lee (dob 5/9/53). The applicant stated that he had not left any country to avoid being removed, had not been excluded from Australia and has no outstanding debts to the Commonwealth.
On 15 November 2005 the applicant made the application for the Temporary Work Skilled Subclass 457 visa. In the application form the applicant gave his name as Myung Woo Lee. He stated that he had not been known by any other name and has not been removed from any country.
In December 2007 the applicant made an application for a Spouse visa in the name of Myung Woo Lee (dob 5/9/53). He included his passport in the same name. On from 47SP the applicant gave his name as Myungwoo Lee, gave his passport number and date of birth as 5 September 1953. The applicant stated on the form that he has never had a visa cancelled, has not held a Bridging visa E, has not left the country to avoid being removed and had no outstanding debts to the Commonwealth. The applicant stated on the form that from 1990 to 2005 he lived in Busan city in Korea. On form 80, when asked about his previous visits to Australia, the applicant stated ‘n/a’. The applicant was granted the Provisional Spouse visa on 12 February 2008 and the permanent visa on 18 January 2010.
On 19 March 2015 the applicant made an application for the Resident Return visa in the name of Myungwoo Lee. He provided his South Korean passport and National ID card. In the application form the applicant stated that he had not been removed, deported or excluded from any country and that he had never had any outstanding debts to the Australian government or public authority. The applicant was granted the RRV on 23 March 2015.
On 15 October 2019 the applicant made another application for the RRV, also under the name of Myungwoo Lee. He gave his South Korean passport and National ID card and signed a declaration indicating that he had not been removed, deported or excluded from any country and that he had never had any outstanding debts to the Australian government or public authority. The applicant was granted the RRV on 17 October 2019.
The applicant also stated in the various applications that he had not been convicted of any offences.
On 4 June 2020 the applicant made an application for the Australian citizenship in the name of Bruce Lee and he stated in that application that he had also been known by the name of Myungwoo Lee. The applicant provided a NSW Change of Name Certificate issued in November 2019.
The primary decision record indicates that in 2012 the NSW Department of Roads and Maritime Services (RMS) provided information to the Department indicating that the applicant’s facial image appeared to match a record on their system. RMS advised that the following identities potentially related to the same person:
Kang Yoon Lee (dob 10/2/52)
Chong Yung Yi (dob 5/9/53)
Myungwoo Lee (dob 5/9/53)
All three presented different Korean passports.
In March 2012 the Department completed a facial image comparison report completed by a departmental Forensic Facial Image Comparison Specialist. The primary decision record indicates that for the purpose of the assessment, images were used that had been provided
a.in June 1999, in relation to an application for a permanent visa, by Kang Yoon Lee;
b.in January 2004 for the purpose of a health assessment provided by Chong Yung Yi;
c.in August 2005 for the purpose of a health assessment by Myungwoo Lee;
d.in December 2007 for the purpose of the Partner visa application by Myungwoo Lee.
The examiner noted similarities between the identifies of Kang Yoon Lee and Myungwoo Lee and that there was a direct match identified on the Biometric Acquisition Matching System between Chong Yung Yi and Myungwoo Lee. Similarities were also found between the identifies of Myungwoo Lee presented in 2005 and 2007 applications.
The primary decision record sets out the following immigration history relevant to the applicant. In April 1999 the applicant arrived in Australia holding a Tourist visa in the name of Kang Yoon Lee. He then made an application for a substantive visa onshore on 4 June 1999 and gave his address at Burwood Road, Belmore. The application was refused by the delegate in June 1999 and later by the Tribunal and the applicant made a request for Ministerial intervention, which was not successful. The applicant became an unlawful non-citizen on 27 July 2000 and remained in Australia unlawfully until 27 July 2003 when he departed Australia.
The applicant was then subject to an exclusion period imposed by PIC 4014. Despite that, he returned to Australia on 25 October 2003, having been granted a Visitor visa (ETA) in the name of Chong Yung Yi. He made several applications for Visitor visas in Australia, with the last one granted for six months on 20 July 2004. In these applications the applicant also gave his address in Burwood Road, Belmore. The last Visitor visa was cancelled on 16 September 2004 as the applicant was found to have been working unlawfully in breach of condition 8101. The applicant was detained and released from detention on 22 September 2004. At that time he was advised that he had a debt to the Commonwealth of $654.50. It is stated that the applicant was informed of the three year exclusion period before his departure. The applicant left Australia on 9 October 2004.
It is also stated that in August 2004 the applicant was convicted of driving while under the influence and was fined $1000 and disqualified from driving. In October 2004 the applicant was charged with a further offence of driving while disqualified but he did not attend court and departed Australia prior to the hearing date.
In his response to the NOICC and evidence to the Tribunal the applicant concedes that he had previously travelled to Australia under different names and had made other visa applications in Australia. The circumstances of these visits and past visa applications are set out below.
Having regard to the applicant’s own evidence, as well as the results of the Facial Comparison reports and the information summarised above, the Tribunal finds that the applicant had been known by other names, that he had previously travelled to Australia on multiple occasions using different identities, that he did have a debt to the Commonwealth and also a conviction in Australia. The Tribunal finds that the applicant completed the application forms (referred to above) in the way that incorrect answers were given or provided, when he claimed that
a.he had not previously travelled to Australia
b.he never held Bridging E visas
c.he had not been known by any other name
d.he had no debt to any Australian authority
e.that he lived in Korea between 1990 and 2005
f.he had no criminal convictions.
The Tribunal finds that the applicant completed the application form in the way that incorrect answers were given or provided. The Tribunal finds the applicant did not comply with s.101 of the Act.
The Tribunal acknowledges that the information about the applicant’s possible other identities used in earlier visa application may have been known to Immigration as early as in 2012. However, s. 106 of the Act provides that the requirement to comply with, relevantly, s. 101 is not removed or otherwise affected by the fact that an officer had the information.
For these reasons, the Tribunal finds that there was non-compliance with s. 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
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 reg 2.41 of the Regulations. They are:
The correct information
The correct information is that the applicant had been known by other names and had previously travelled to Australia on multiple occasions. The correct information is that he previously held a Bridging E visa. The correct information is that the applicant had a debt to the Commonwealth. The correct information is that he did not live in Korea between 1990 and 2005, as claimed in the Partner visa form.
The content of the genuine document (if any)
This is not relevant in the present case.
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 applicant’s immigration history was relevant to assessing whether he is a person of good character. The use of different identities and residence in Australia as an unlawful non-citizen may have been relevant to the assessment of his character. The applicant’s previous visits to Australia were relevant to determining whether he met the Special Return Criteria. His debt to the Commonwealth was also relevant to determining if he met the Schedule 4 criteria.
In his submission to the Tribunal of 16 February 2023 the applicant concedes that the information he gave was false in relation to his character (when he claimed he had not been removed, deported or excluded from Australia) and debt to the Commonwealth. The applicant concedes that he previously had a visa cancelled due to a breach of a no-work condition and had been subject to exclusion periods.
The Tribunal is mindful that the applicant was able to obtain visas while subject to an exclusion period because he failed to declare his previous visit to Australia and stay as an unlawful non-citizen. If the applicant’s previous residence in Australia and his stay as an unlawful non-citizen was known, it is possible that the applicant’s Visitor visas would not have been granted.
The applicant submits in his statement to the Tribunal that there were no incorrect answers in relation to the grant of the RRV. The information in the primary decision record indicates that the applicant did provide an incorrect answer in the application for the RRV as he claimed he had no outstanding debts to the Commonwealth. Further, the Tribunal notes that the NOICC relates to the grant of the earlier visas, as envisaged by s.107A of the Act.
The Tribunal finds that the decisions to grant the applicant various were based, in part, on incorrect information.
The circumstances in which the non-compliance occurred
In his response to the NOICC and evidence to the Tribunal the applicant explained that he was facing persecution in Korea and could not find employment. He heard that Australia was a good country, so he decided to travel to Australia using his birth name. After arriving in Australia he met a migration agent though a classmate, who promised to obtain a work visa for him and deceived him. The applicant states this person reported him to Immigration for working unlawfully and he was deported to Korea.
The applicant states that he wanted to revenge the agent for deceiving him, so he returned to Australia using his cousin’s passport. The applicant states that he had to pay money to another person to have his passport reissued under a different name (which was correct name but with a different spelling). The applicant claims that he was repeatedly deceived by his agent, but he trusted the agent and did not know any other way to solve his problems and did not think the agent was working illegally.
In his submission to the Tribunal the applicant also states that in 2002-03 a friend recommended that he should seek a work visa to stay lawfully and referred him to another person. The applicant states that he trusted that person and was vulnerable after a difficult history in South Korea. The (unlicensed) agent deceived the applicant and took a large fee but did not make a proper application and applied for another visa, rather than a work visa. The applicant concedes that he was working unlawfully and was twice subject to an exclusion period. In his submission to the Tribunal the applicant concedes his fault and states that he was vulnerable and exploited for financial gain.
The applicant states that after returning to Korea in 2004 he did not consider travelling to Australia but a friend told him there was a shortage of welders in Australia and he accepted the offer and came to Australia, having previously changed his name through the court system. He then met his wife and married in 2007.
The applicant states that he was deceived by those who sold him the car but did not transfer the registration (resulting in the charges). The applicant states that he was unaware of the impending court hearing when he left Australia. He also told the Tribunal that he was unaware of having a debt to the Commonwealth.
In oral evidence the applicant submits that he did these things because of his ignorance of the Australian immigration laws and because he was in desperate circumstances at the time. He refers to his responsibilities to support his family, stating that Australian was his only hope. He refers to having no English, living in the Korean community and being reliant on the advice of others. His daughter’s oral evidence to the Tribunal is that the applicant had been persecuted by the authorities and Korea and could not find a job and the family had significant financial hardship.
The Tribunal finds many of the applicant’s explanations unconvincing. The applicant seems to suggest that his past conduct was entirely due to being misled by the agent. The Tribunal does not accept that is the case. The applicant’s evidence is that the agent had misled him during his first entry to Australia and failed to apply for the work visa as promised. Yet the applicant also states that he had repeatedly approached that agent seeking other visas and other services. In the Tribunal’s view, if the applicant was genuinely upset about being misled by the agent upon his first entry to Australia, or if he genuinely believed the agent was not acting in the applicant’s interests and was being unscrupulous, he would not repeatedly approach the agent and rely on that agent to resolve his visa issues. The applicant’s willingness to repeatedly rely on that agent suggests to the Tribunal that the applicant intentionally sought to approach a person he knew was unscrupulous and able to make untruthful claims in visa applications in order to extend the applicant’s stay in Australia.
Further, the applicant concedes that he used his cousin’s passport to enter Australia. He also states that he paid money to another person to change the spelling of his name in the passport. That is, the applicant took active steps to falsify his records in order to be able to return to Australia, knowing, and having been expressly informed, that he could not have travelled to Australia within the exclusion period, if he provided truthful information about his identity. In the Tribunal’s view, such conduct can hardly be blamed on the agent. Whatever advice the applicant received from the agent, it must have been obvious to him that the use of a fraudulent passport and a false name to enter another country is against the law. The applicant was fully aware that he was acting unlawfully by using false identities to enter the country. The applicant’s willingness to do so suggests that he had intentionally breached the laws and that he was willing to do anything in order to travel to, and remain in, Australia.

Significantly, the issue here is the applicant’s failure to mention these events in his various visa applications, not the circumstances of the applicant’s past entries to Australia. Even if the applicant’s evidence is accepted in its entirety, it does not explain his failure to mention his immigration history in the various applications he made since 2005. Notably, the more recent RRV applications and the application for the Australian citizenship were made recently and the applicant – who by that time had been living in Australia for several years and may have been more familiar with the Australian laws - continued to provide false information in his dealings with the Department. The applicant’s persistent desire to mislead Immigration and to withhold information about his immigration history indicates, in the Tribunal’s view, that the applicant is not a person of credibility. It also suggests to the Tribunal that the breach was deliberate and the applicant had the intention to mislead and to withhold information from the Department so as not to jeopardise the grant of his visas.
The applicant told the Tribunal that after living in Australia, he was scared that if he disclosed the correct information, his visa may not be approved. In the Tribunal’s view, the applicant’s desire to remain in Australia and to retain his visa was the real reason for the non-compliance with s. 101, rather than his claimed lack of English, lack of understanding and reliance on the agent and others.
The present circumstances of the visa holder
In his response to the NOICC and evidence to the Tribunal the applicant refers to his ongoing relationship with an Australian citizen Ms Jung since 2017. The applicant states that his two adult children live in Korea and his daughter is in Australia and lives with them and she is in the process of applying for permanent residence. The Tribunal accepts that evidence.
The applicant claims he has been living in Australia for over 20 years, is involved with community organisations and participates in community activities, he is settled here and has nothing to return to in Korea. The applicant states that his step-daughter is about to get married in Australia. The applicant told the Tribunal that he had been providing for his family for many years (he no longer works and no longer provides for his family), has many friends in Australia and wants to remain in Australia.
The applicant refers to his involvement in various organisations in Australia. The applicant presented to the Tribunal evidence relating to business operations and his taxation records. Having regard to the length of the applicant’s stay in this country, the Tribunal accepts that the applicant is well settled in Australia and that he has formed significant family, community, social and other ties in Australia. The Tribunal is also prepared to accept that he has few (if any) ties in Korea, although his two children live there and constitute substantial family ties.
The applicant states that he has lodged tax returns from 2009 and he provided to the Tribunal evidence of having done so. The Tribunal accepts that evidence.
The applicant states that the cancellation of his visa would be traumatic to him, his partner and his daughter. The Tribunal accepts that hardship may be caused as a result of the cancellation, although the Tribunal is also mindful that if the applicant has a genuine relationship with an Australian partner, he would be eligible to seek an Australian Partner visa in the future that may enable the applicant to live with his partner in Australia.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
The applicant explains in his submission to the delegate that he travelled to Australia using his cousin’s passport and also using a fraudulently obtained passport. The Tribunal considers these documents to be bogus documents because they purport to be, but were not issued with respect to the applicant. The Tribunal finds that the applicant had not complied with s. 103 of the Act.
The applicant submits that the purpose of s. 109 power is not punishment and deterrence and reduced weight should be given to this consideration. The Tribunal accepts that the purpose of the cancellation provision is not punishment but the applicant’s conduct, and all instances of non-compliance are relevant to the exercise of discretion.
The time that has elapsed since the non-compliance
The above instances of non-compliance occurred from 2005 until the most recent visa application in 2019. While significant time passed since the initial non-compliance, not much time has passed since the more recent non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The primary decision record refers to a conviction for driving under the influence. In his submission to the Tribunal the applicant states that in August 2004 he was suspended from driving for 12 months and fined $1000 for drink driving. (He explains to the Tribunal that he was not driving but was simply sitting in his car because he had problems at home and he feels the conviction is unfair. The Tribunal is of the view that the fact of the conviction is evidence that the offence has been committed, whether or not the applicant believes the conviction to be fair.) He submits that given the modest sentence and the time that has passed, this should be given minimal weight. The Tribunal is mindful that the conviction and the conduct occurred prior to the non-compliance and not since the non-compliance. The Tribunal gives these no adverse weight.
Any contribution made by the holder to the community.
The applicant refers to his involvement with the various organisations in the Korean community and his voluntary activities. The applicant told the Tribunal about his fight for democracy and freedoms. He refers to providing information for the media, being involved in women’s rights and women’s support activities, raising awareness about various events and other activities. The Tribunal accepts that the applicant has contributed to the community.
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.
Whether there would be consequential cancellations under s 140.
There are no persons whose visa would be subject to consequential cancellation.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
There are no minor children who would be affected by the cancellation of the visa. The applicant states that his daughters want to migrate to Australia but the Tribunal is mindful that the applicant’s children are over the age of 18 and are not considered minor children.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
There is no evidence, and the applicant does not claim that he would be subjected to harm or persecution if he is to return to Korea. The applicant repeatedly told the Tribunal that he does not believe he would be subjected to harm or persecution if he is to return to Korea. On the evidence before it, the Tribunal does not consider that Australia’s non-refoulement obligations arise in this case.
As for the principle of family unity, the applicant’s partner resides in Australia and the applicant may be eligible to seek a Partner visa in the future to live with his partner. His two children live overseas and his daughter in Australia holds a temporary visa only. The Tribunal does not consider that the family unity obligations would be breached if the applicant’s visa is cancelled.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
If the visa is cancelled, and unless the applicant is granted another visa, the applicant would become an unlawful non-citizen and may be subject to detention and removal from Australia. There is no suggestion he would be detained indefinitely. The applicant may apply for other visas in Australia but there are limited types of visas he could validly apply for due to the operation of s 48. The applicant may be subject to an exclusion period if he was to apply for a visa offshore. If the visa is cancelled, the applicant would lose the entitlements he had acquired as a permanent resident of Australia and he would not be able to sponsor others for the Australian visas.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The applicant refers to the hardship of having to return to Korea, noting the length of time he has resided in Australia and his absence from Korea. The applicant refers to the strength of his ties in Australia and the absence of ties and support in Korea. As noted above, the Tribunal accepts that the applicant has extensive ties in Australia.
The applicant states that his adult children will be depressed and suffer emotional hardship if his visa is cancelled. The Tribunal does not accept that evidence. The Tribunal is mindful that the applicant has been living away from his children in Korea for many years. If the cancellation of the applicant’s visa will result in the applicant departing Australia and returning to Korea, it is difficult to see how that could cause hardship or emotional difficulties to his children in Korea. If he is to remain in Australia (for example, by seeking the Partner visa), there would be no significant difference to his present circumstances. As for the applicant’s daughter in Australia, she does not hold a permanent Australian visa but in any case, she is an adult and is capable of living independently irrespective of the applicant’s visa status. The applicant presented no probative evidence (such as any report from a health professional) to indicate that his children will suffer emotional hardship if his visa is cancelled.
The applicant claims that even though he left his children in Korea and travelled to Australia some 20 years earlier, he was able to maintain a close friendship with his children. If that is the case, the Tribunal is of the view that the applicant would be able to retain that friendship irrespective of his visa status. The Tribunal is prepared to accept that the applicant’s children may be upset if he is upset by the cancellation of the visa but the Tribunal does not accept that the applicant’s children will experience hardship if the applicant’s visa is cancelled.
Ms Yi’s evidence to the Tribunal is that she supports her father financially and if he is to depart Australia, it would be hard on her emotionally. She states that her father gives her positive comments face to face but things would not be the same if they are separated. While the Tribunal generally accepts that the applicant’s relationships with his family and others may be different if there is physical separation, the Tribunal does not accept that such relationships cannot continue or that friendships would cease.
The applicant provided a reference from his local pastor. Reverent Hahn refers to the applicant as a person of good character and a respected member of the congregation. The Tribunal accepts that evidence although it is not entirely clear whether Rev. Hahn is fully aware of the applicant’s immigration history. The applicant told the Tribunal that he did inform the Reverend of his immigration history but that is not obvious from the written statement.
The applicant states that others in the community benefit from his contribution and involvement in community organisations. The Tribunal is prepared to accept that evidence.
The applicant refers to having a support network in Australia. He refers to having all his friends in Australia and states that he cannot imagine leaving his friends and his support network in Australia. Putting aside the fact that the applicant may not necessarily leave Australia even if his visa is cancelled, the Tribunal is of the view that the applicant will be able to retain at least some of his friendships if he is to leave Australia, as he has told the Tribunal that he was able to maintain friendships with people in Korea despite his lengthy residence in Australia. The Tribunal accepts that the applicant may not be able to participate in various activities if he was in Korea as he has done in Australia.
Generally, the Tribunal accepts that the applicant may experience a certain degree of hardship if his visa is cancelled and if he was to leave Australia, noting in particular the length of his residence in Australia and the significant family, social, economic and other ties he has formed in Australia.
The applicant submits that he has been truthful in his evidence to the Tribunal, he has not attempted to overstate his case or advance arguments that are not meritorious. The Tribunal acknowledges that is the case.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant failed to comply with s. 101 of the Act and that there are grounds for cancelling his visa.
The Tribunal accepts that significant hardship may be caused to the applicant and his family if the visa is cancelled and if the applicant is required to leave Australia as a result (noting that this is not necessarily the case). In particular, the Tribunal acknowledges that the applicant has been residing in Australia for a lengthy period and has formed close ties in this country. The Tribunal accepts that while the applicant may be able to maintain his relationship and friendships despite not living in Australia, there would not be of the same nature and perhaps not of the same quality. That supports the Tribunal’s view that hardship could be caused to the applicant if he is to leave Australia. The Tribunal acknowledges that the hardship may be ameliorated to some extent if the applicant is to seek another visa – such as a Partner visa – in the future and he told the Tribunal there is no reason why this could not occur.
The Tribunal accepts that the applicant has made a contribution to the community. The Tribunal accepts that he is involved in various organisations and is considered by others to be a good person. The Tribunal accepts the applicant has expressed remorse and regret for his conduct (although the Tribunal notes he has only done so in response to the NOICC and prior to that the applicant continued to mislead in his various visa applications and the application for the Australian citizenship).
The Tribunal accepts that there are significant legal consequences if the applicant’s visa is cancelled in that the applicant’s options for future applications would be limited and that he will lose his right to remain in Australia and the opportunity to acquire the Australian citizenship. All these factors weigh heavily against the cancellation.
The Tribunal has found that Australia’s non-refoulment obligations and family unity principles would not be breached as a result of the cancellation and that there are no minor children who would be affected by the cancellation. The Tribunal places no weight on the applicant’s conviction which occurred prior to the non-compliance. These considerations are neutral.
The Tribunal has formed the view that there are several factors that weigh in favour of the cancellation. Most significantly, the Tribunal places weight on the circumstances in which the non-compliance occurred. The applicant gave several reasons why he chose to travel to Australia and to return to Australia. While the Tribunal found these explanations unconvincing, and not necessarily truthful, the Tribunal’s concern is not with the applicant’s immigration history but his non-compliance with s. 101 of the Act. The applicant concedes in his evidence to the Tribunal that he did not provide truthful answers in his various visa applications because he was afraid the visas would not be granted. That is, the breaches occurred not because the applicant was fearful of persecution in Korea, or faced financial hardship or was ignorant of the law and misled by others. The breaches occurred because the applicant wanted to remain in Australia and decided that being untruthful and not disclosing his immigration history was the best way to ensure his visas were granted.
The Tribunal notes that the breaches were multiple, relating to the Work visa he applied for in 2005, the Partner visa application in 2007 and the two RRV applications made in 2015 and 2019 respectively. In all these applications the applicant was consistent in his dishonesty. It is notable that this conduct took place over a nearly fifteen year period and the more recent breaches occurred a fairly short time ago.
There are other instances of non-compliance as the Tribunal has formed the view that the applicant had in the past presented bogus documents (passports) with his applications. He also has a criminal conviction, which he also failed to declare (believing it was ‘unfair’).
The Tribunal also places some weight on the fact that the decision to grant the applicant the various visas was based, in part, in incorrect information. The applicant’s 2005 visitor visa was based on the fact that the applicant had not previously travelled to Australia (and that he was not subject to an exclusion period). In the subsequent visa applications the delegates were denied the opportunity to assess the applicant’s character, the special return criteria and PIC 4004 because the applicant did not disclose relevant information. These factors weigh heavily in favour of the cancellation and, in the Tribunal’s view, outweigh other considerations.
Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
decision
The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Kira Raif
Senior Member

[2023] AATA 361

21 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction