Lee (Migration)

[2019] AATA 5572

Lee (Migration) [2019] AATA 5572 (10 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Whanho Lee

CASE NUMBER:  1811304

HOME AFFAIRS REFERENCE(S):          BCC2018/1264519

MEMBER:Joseph Lindsay

DATE:10 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 10 December 2019 at 2:29pm

CATCHWORDS
MIGRATION – cancellation – Vocational Education and Training Sector (Class TU) visa – Subclass 572 (Student) – incorrect information given in visa application – previous working holiday visas under different name and passport – overstayed visa, with lengthy period as unlawful non-citizen – overstay not declared in visa application – facial image comparison by motor registry and department – no appearance by applicant at hearing – discretion to cancel visa – factors for and against cancellation – intentional use of alternate identity for visa application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 109(2)

Migration Regulations 1994 (Cth), r 2.41

CASE

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 dated 13 April 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s subclass 572 Vocational Education and Training Sector visa under s.109(1) of the Migration Act 1958 (the Act).

2. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. In his application, the application provided a copy of the Department’s decision dated 13 April 2018.

3. The applicant was invited to have a hearing before the Tribunal on 10 December 2019 at 12:30pm. However, the applicant failed to appear for the hearing.

4. If the applicant had appeared at the hearing, the Tribunal would have had the opportunity to ask questions of the applicant.

5. The Tribunal would have had the opportunity to ask the applicant why he claimed that he had not overstayed a visa in any country (including Australia), when in fact he had previously overstayed a visa in Australia.

6. Accordingly, the Tribunal has decided to make a decision on the available evidence. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. On 13 April 2018, the delegate decided to cancel the applicant’s student visa. In this decision the term “visa holder” and the term “applicant” are used to describe Mr Whanho Lee (aka Whanho Song).

9. Essentially, the delegate found that the applicant’s circumstances did not comply with sections 101(b) of the Act and, accordingly, cancelled the visa under s109 of the Act.

10. Section 101(b) of the Act states:

    101 Visa applications to be correct

    A non-citizen must fill in or complete his or her application form in such a way that:

    …

    (b) no incorrect answers are given or provided.

11. On 29 April 2015 the applicant lodged an application for a Student (subclass 572) Visa where he answered “no” to the question “Has any applicant ever overstayed a visa in any country (including Australia)?” and he answered “yes” to the question “The information provided in this form is complete, correct and up-to-date.”

12. On the basis of this information, and meeting all other relevant criteria, the visa holder was granted a Student (subclass 572) visa on 29 May 2015.

13. The delegate’s decision noted that the Department received information from Transport Roads and Maritime Services about facial images of persons registered with them as Whanho Song (DOB 04/06/1990) and Whanho Lee (DOB 04/06/1990).

14. On 09 March 2018 a facial image comparison report was undertaken by the Department based on the findings of this examination of the facial comparisons, it was found that the facial images of Whanho Song (DOB 04/06/1990) and Whanho Lee (DOB 04/06/1990) represent the same person.

15. The delegate’s decision noted that:

    -Transport Roads and Maritime Services advised the visa holder produced a Korean passport (number M43645288) (Korean personal number 1221823) under the name of Whanho Song (DOB 04/06/1990) as proof of identity.

    -Departmental records indicate that the visa holder previously travelled to Australia on Working Holiday (subclass 417) visa under the name Whanho Song on 25 August 2009, and applied for his second Working Holiday (subclass 417) visa on 11 August 2010, which was granted on 27 August 2010.

    -Subsequently, the visa holder overstayed his second Working holiday (subclass 417) visa after it ceased on 25 August 2011 and was granted a Bridging E (subclass 050) visa on 05 September 2013. The visa holder departed Australia on Bridging E (subclass 050) visa on 13 September 2013.

16. The delegate’s decision noted that:

    -Departmental records indicate that the visa holder applied for a Working Holiday (subclass 417) visa on 21 March 2014 under the name Whanho Lee (DOB 04/06/1990) and the visa holder arrived in Australia on 30 April 2014.

    -Subsequently the visa holder applied for a Student (subclass 572) visa on 29 April 2015 and was granted the Student (subclass 572) visa on 29 May 2015.

    -Transport Roads and Maritime Services advised the visa holder produced a Korean passport (number M90058179) (Korean personal number 1221823) under the name of Whanho Lee (DOB 04/06/1990) as proof of identity.

17. Accordingly, the Tribunal accepts the above information and finds that the visa holder has previously been known as Whanho Song, and has overstayed while holding a previous Working holiday (subclass 417) visa. The Tribunal finds that, on the basis of the above information as accepted by the Tribunal, the visa holder intentionally utilised an alternate identity to facilitate the grant of future visas.

18. The Tribunal accepts the above information and finds that the applicant did not comply with subsection 101(b) of the Act where he gave incorrect answers on his electronic application form where he answered “no” to the question “Has any applicant ever overstayed a visa in any country (including Australia)?” and he answered “yes” to the question “The information provided in this form is complete, correct and up-to-date.”

19. Accordingly, the Tribunal finds that visa holder did not comply with subsection 101(b) when he applied for the Student visa on 29 April 2015.

20. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder (the applicant) 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.

21. 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. Extracts of the Act relevant to this case are attached to this decision.

22. 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?

23. 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.

24. Given the information before the Tribunal as indicated above, the Tribunal is satisfied that the applicant’s non-compliance was identified and particularised in the s.107 notice.

25. For these reasons, the Tribunal finds that there was non-compliance with section 101(b) of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

26. 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).

27. 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 Migration Regulations 1994 (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

    ·     any contribution made by the holder to the community.

28. 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.

29. The Tribunal’s assessment of all the prescribed circumstances as set out in Regulation 2.41 is as follows:

    (a) the correct information

30. The correct information is that the visa holder intentionally provided incorrect information regarding his previous overstay in Australia under the identity of Whanho Song to facilitate the grant of a visa in the identity of Whanho Lee.

31. The Tribunal accepts that:

    -Under the identity Whanho Song, the visa holder entered Australia on 25 August 2009 as the holder of a Working Holiday (subclass 417) visa which ceased on 25 August 2010. Subsequently Whanho Song applied for his second Working Holiday (subclass 417) visa on 11 August 2010 and this visa was granted on 27 August 2010.

    -The second Working Holiday (subclass 417) visa ceased on 25 August 2011.

    -Thereafter Whanho Song remained in Australia as an unlawful non-citizen until 05 September 2013 where he was granted a Bridging E (subclass 050) visa.

    -The visa holder departed Australia on 13 September 2013.

    -The visa holder returned to Australia within the three year exclusion period that was incurred under his alternate identity of Whanho Lee.

32. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    (b) the content of the genuine document (if any)

33. This consideration is not relevant to my decision. In regard to this consideration I give no weight in the visa holder’s favour.

    (c) 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

34. The Tribunal finds that the decision to grant the applicant a student visa was based partly on incorrect information described above.

35. The Tribunal finds that had the granting delegate been aware of this previous overstay and the exclusion period that had been incurred, it is likely that the current visa would not have been granted.

36. The Tribunal gives this consideration high weight against the applicant.

    (d) the circumstances in which the non-compliance occurred (reg. 2.41(d))

37. The circumstances in which the non-compliance occurred are described above. In summary, the applicant intentionally gave the Department false information in order to obtain his student visa.

38. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    (e) the present circumstances of the visa holder (reg. 2.41(e))

39. The applicant appears to be presently offshore.

40. Accordingly, the Tribunal gives no weight in the applicant's favour.

    (f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958 (reg. 2.41(f))

41. The applicant provided incorrect information in his application for a student visa in order to facilitate a favourable migration outcome.

42. There is no indication that the applicant made any effort to correct the incorrect information provided to the Department or the Tribunal.

43. Accordingly, the Tribunal gives this no weight in the applicant's favour.

    (g) any other instances of non-compliance by the visa holder known to the Minister (reg. 2.41(g))

44. The Tribunal accepts that:

    -Under his previous identity Whanho Song, the visa holder spent a period of two years in Australia as an unlawful non-citizen.

    -He eventually departed Australia and incurred a three year exclusion period which was circumvented by adopting a new alias and providing incorrect information on his current visa application in the name of Whanho Lee.

45. The Tribunal gives this consideration high weight against the applicant.

    (h) the time that has elapsed since the non-compliance (reg. 2.41(h))

46. The non-compliance occurred when the visa holder applied for the student visa on 29 May 2015.

47. The time that has elapsed since the non-compliance is now some four and a half years.

48. The Tribunal finds that despite the time that has passed since the non-compliance occurred, the significance of the applicant’s deceptive behaviour is such that his behaviour represents a significant risk to the integrity to Australia’s migration system.

49. The Tribunal gives this consideration no weight in the applicant’s favour.

    (j) any breaches of the law since the non-compliance and the seriousness of those breaches (reg. 2.41(j))

50. There is no information before me to indicate that the visa holder has breached any laws since the non-compliance.

51. The Tribunal gives this consideration no weight in the applicant’s favour.

    (k) any contribution made by the holder to the community (reg. 2.41(k))

52. There is no specific information before the Tribunal to suggest the applicant has made a contribution to the Australian community. Accordingly, the Tribunal gives this no weight in the applicant's favour.

53. The Tribunal’s assessment includes the following other matters.

    • Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.

54. There are no persons in Australia whose visas would, or may, be cancelled under s140 of the Act. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    • Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.

55. There is no information before the Tribunal to indicate the circumstances of this case are such that would engage Australia’s international obligations. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    • Whether there are mandatory legal consequences to a cancellation decision.

56. If the student visa is cancelled the applicant would have been an unlawful non-citizen and would have been liable for detention under s189 and removal under s198 of the Migration Act 1958 if he did not voluntarily depart.

57. If the visa is cancelled, the visa holder would be subject to section 48 of the Migration Act, meaning he would have limited options to apply for further visas in Australia, and to the provisions of Public Interest Criterion 4013, which would prevent the grant of further certain visas to him for a period of three years from the date of the cancellation.

58. However, the Tribunal accepts that applicant already knows very well about these legal consequences, otherwise he would not have previously stayed onshore unlawfully for over two years, then leave Australia, then change his identity, then lie to the Department to get another visa, then return to Australia, then have his visa cancelled by the Department, then stay in Australia until he departed on 15 March 2019. 

    • Any other relevant matters.

59. There are no other relevant matters for the Tribunal to consider.

60. The Tribunal finds the applicant’s actions in this situation to give foundation to the Tribunal’s finding that the applicant has no regard whatsoever for Australian migration laws and he is prepared to engage in totally dishonest and deceptive behaviour in order to achieve a favourable migration outcome. Accordingly, the Tribunal gives this consideration high weight against the applicant.

61. 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

62. Having decided that under s108 of the Act that there was non-compliance in the way described in the notice issued under s.107 of the Act and having considered all the prescribed matters set out in regulation 2.41 of the Regulations, I find the reasons to cancel the visa outweigh the reasons not to cancel.  

63. The Tribunal affirms the decision to cancel the applicant’s subclass 572 Vocational Education and Training Sector visa.

    Joseph Lindsay

    
    

    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.