Lee (Migration)

This matter concerned an appeal by Mr Whanho Lee against the cancellation of his Student (subclass 572) visa. The delegate had cancelled the visa under s 109 of the *Migration Act 1958* (Cth) on the basis that Mr Lee had failed to comply with s 101(b) of the Act by providing incorrect information in his visa application. Specifically, Mr Lee had answered "no" to a question asking if he had ever overstayed a visa in any country, and "yes" to a question confirming the completeness and accuracy of the information provided.

The legal issues before the Tribunal were whether Mr Lee had complied with s 101(b) of the Act, and if not, whether his visa should be cancelled. The Tribunal was required to consider various factors under regulation 2.41 of the *Migration Regulations 1994* (Cth) when determining whether to affirm the cancellation decision.

The Tribunal found that Mr Lee had provided incorrect information in his visa application. Departmental records, supported by facial image comparison, indicated that Mr Lee had previously travelled to Australia on Working Holiday (subclass 417) visas under the name Whanho Song. Under that identity, he had overstayed his second Working Holiday visa and remained in Australia as an unlawful non-citizen for approximately two years before departing on a Bridging E visa. He had subsequently applied for and obtained a Working Holiday visa and then the Student visa under the name Whanho Lee, without disclosing his previous overstay. The Tribunal gave significant weight against Mr Lee due to his intentional use of an alternate identity and the provision of false information, which it considered posed a risk to the integrity of Australia's migration system. Factors such as the time elapsed since the non-compliance and the absence of any subsequent breaches of the law or contributions to the community were given no weight in his favour.

The Tribunal affirmed the decision to cancel Mr Lee's Student visa, concluding that the reasons for cancellation outweighed the reasons against it.