LEE (Migration)

[2018] AATA 4964

LEE (Migration) [2018] AATA 4964 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sumin LEE

CASE NUMBER:  1618589

DIBP REFERENCE(S):  BCC2016/1837767

MEMBER:Melissa McAdam

DATE:31 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 31 October 2018 at 11:22am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) – incorrect information on visa application – change of name – personal information identical on old and new identity documents – overstayed previous visa – lack of comprehension – complied with other visa conditions – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41, Schedule 4, Public Interest Criterion 4014

CASES

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 applicant’s Subclass 572 Vocational Education and Training Sector visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act in that she provided incorrect answers to questions in her visa application form. These answers were in relation to:

   -    whether she has ever been removed, deported, or excluded from any country; and

   -    whether she has overstayed a visa in any country.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. On 17 October 2016 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of her Student visa, inviting her to comment on a possible breach of s.101(b) of the Act.  Section 101(b) requires that “A non-citizen must fill in or complete his or her application form in such a way that  … no incorrect answers are given or provided.”

5. The NOICC stated that the Department believed the applicant was the same person as a previous visa applicant, Ms Kyoungsun Lee, because Departmental records showed that the Student visa application by Kyoungsun Lee contained a passport with a photograph which appeared to be of the applicant; and  because she and Ms Kyoungsun Lee had the same Korean identity number.

6. The NOICC further stated that the applicant had provided the following responses to questions in her visa application form (answers in bold):

   Has any applicant ever been removed, deported, or excluded from any country (including Australia)? No.

   Has any applicant ever overstayed a visa in any country(including Australia)? No.

7. The NOICC stated that Ms Kyoungsun Lee remained unlawfully in Australia between 16 March 2014 and 15 April 2014. She was then granted Bridging Visas, with her last Bridging Visa valid until 26 April 2014.  She departed Australia on 26 April 2014.

8. The NOICC sets out that this prevented Ms Kyoungsun Lee from being granted a further visa due to Public Interest Criterion 4014 - leaving Australia while not holding a visa and more than 28 days after last holding a substantive visa.

9. According to the Department’s records the applicant did not respond to the NOICC.

10. The delegate cancelled the visa on the basis that the applicant had not complied with s.101 of the Act.

11. The applicant appeared before the Tribunal on 2 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tao Ho Park. The applicant was assisted by a Korean interpreter at the hearing. The following is a summary of the information provided at the hearing.

    a.She only found out her visa had been cancelled when she applied for a Driver’s Licence and she was told she had a problem with two names. She was initially unsure why her visa was cancelled so she asked her friend to make enquiries for her.

    b.The name she was given at birth was Kyoungsun Lee.  Three years ago she decided to change her name to ‘Sumin’ Lee. She did this because she thought her birth name was unlucky because things were not going well for her.  She believed that being named ‘Sumin’ would bring her better luck.  Both she and her younger sister changed their names at the same time for luck.

    c.She has a certificate showing her change of name, issued by the municipal office.  She will submit this to the Tribunal.

    d.She obtained a new passport because she changed her name.  She went to an agency which completed the application process for her.

    e.Her date of birth is 13 April 1974.

    f.She arrived in Australia approximately three years ago. She had previously come to Australia in 2012. She arrived on a tourist visa and was then granted a Student visa.

    g.She does not know if she overstayed her visa  She expected to be told or reminded by the dean of the college of what was required of her for her visa, but this did not happen.  She realised later that she had overstayed when she visited the Department and it was explained to her.  She was advised by the Department to leave Australia and did so within several days.

    h.She does not know if she has been excluded from Australia.

    i.When she returned to Australia in 2014 she studied at a theology college.  She is studying English and attending English classes. She also worked and helped to financially support her family in South Korea.

    j.The Tribunal put to the applicant that the visa which was cancelled by the Department was due to expire in July 2017. The applicant asked if there was any way she could stay in Australia.

    k.The Tribunal put to the applicant that there was a s.375A certificate on the Department’s file. The Tribunal explained the substance of each document to the applicant and asked her if she wanted to make any response or comment. She advised she did not.

    l.The applicant’s friend Mr Park stated that he met the applicant in 2016.  He said that the applicant depended a lot on the Pastor of the college for information. She does not speak English well so the Pastor did everything for her in relation to her visa. This is why she did not know her visa was cancelled, because the pastor did not tell her.

    m.[Information deleted].

12. On 3 October 2018 the applicant submitted a stamped copy of an ‘Individual register’ recording a ‘Change of name’ from ‘Lee Kyoung Sun’ to ‘Sumin Lee’ on 19 June 2014, issued by  the Head of Songyeon Dong office, Daegu, Korea.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. 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.

15. 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?

16. 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 in the following respects: incorrect information in relation to:

    -    whether the applicant has ever been removed, deported, or excluded from any country; and

    -    whether the applicant has overstayed a visa in any country.

17. The incorrect information was stated to be the applicant’s answer ‘No’, to both the above questions.

18. The applicant has confirmed that her visa expired while she was still in Australia and she was advised she had overstayed the visa when she attended the Department’s offices in April 2014.

19. The applicant’s movement records also show that the applicant’s Student visa expired on 15 March 2014 and she remained in Australia without a visa until 16 April 2014.

20. As the applicant overstayed a visa by 31 days the Tribunal finds that the her answer ‘no’ to the form question as to whether she had ever overstayed a visa, was incorrect information.

21. Regarding the applicant’s answer ‘No’ to whether or not she had ever been removed, deported, or excluded from any country the Tribunal considers this is not an incorrect answer. The applicant was not deported or removed from Australia. Nor had she been formally excluded from Australia.  She was subject to Public Interest Criterion 4014 but this is described in the regulations as a ‘risk factor’, not an exclusion provision.  There has not been a decision or act to exclude the applicant from Australia until a visa is refused to her on the basis of the risk factor. This has not occurred.  Further, given there is a compelling/compassionate circumstances exception in Public Interest Criterion 4014, exclusion is not made out until those circumstances have been judged to be non-applicable.  The Tribunal therefore finds that the applicant has not provided incorrect information in answering ‘no’ to the question whether she had previously been removed, deported or excluded from any country.

22. However as the applicant’s answer to the question whether she had ever overstayed a visa, was incorrect information, the Tribunal finds that there was non-compliance with s.101 by the applicant in a way described in the s.107 notice.

    Should the visa be cancelled?

23. As the Tribunal has decided that there was non-compliance in a 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).

24. 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

    ·     any contribution made by the holder to the community.

25. 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.

    The correct information

26. The correct information is that the applicant did overstay her visa by 31 days in 2014.  The Tribunal notes that this is not an excessive amount of time. 

    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

27. The Tribunal considers it quite likely that if the Department were aware that the applicant overstayed her visa briefly in Australia, it would not have granted her the subsequent visa to travel to Australia.

    The circumstances in which the non-compliance occurred

28. The applicant gave evidence that she changed her name for luck when she returned to South Korea, and was not trying to deceive the department when she applied again for a visa to Australia.

29. The Tribunal has considered all the available evidence and for the following reasons, decides that the benefit of the doubt to the applicant is warranted. 

30. The Tribunal notes that the applicant changed only her given name, not her surname. 

31. Further, she retained her South Korean National Identity when applying for a new passport. This number is clearly identified on both her old and her new passport.  She also retained the same date of birth which again, is matched in both passports.  Further, the photograph of the applicant in her new passport shows no indication of any attempt to disguise her appearance. Given these identifying features, particularly the national identity number, it is quite doubtful that the applicant was trying to assume a different identity in her passport application or by using the passport in her visa application. 

32. There is also available country information[1] which shows that it is not uncommon for a South Korean to change his or her name to improve their luck. There are reportedly booths (known as ‘Saju Tents’) outside universities, staffed by ‘fortune-tellers’, to provide advice on lucky names for a fee.

    [1] See e.g. Yonhap News Agency, 2012, ‘For better luck in life and love, some Koreans change their names’, 30 July,  feature /2012/07/26/36/4901000000AEN20120726007200315F.HTML;  and Visit Korea website, “Customs”,

33. The applicant presented at the hearing as a cooperative but somewhat confused or naïve person. She appeared to have some difficulty fully understanding her situation and problems that had arisen.

34. The Tribunal notes that the applicant claimed to have been unaware her visa ceased on 15 March 2014. The Tribunal notes further that the delegate records in her cancelation decision  that the applicant herself presented to the Department on 16 April 2014 and that bridging visas were issued to the applicant to enable her to depart Australia.  The Tribunal notes that the applicant complied with the requirement to depart Australia by 26 April 2014. This information indicates that the applicant may have been unaware on the visa expiration at the time, given her compliance and cooperation with the department in arranging her departure within a relatively short time.

35. The Tribunal considers that the circumstances of the applicant’s non-compliance indicate more a lack of comprehension by the applicant than a deliberate intention to deceive the Department. The Tribunal also considers that the period of the applicant’s overstaying in Australia was relatively short and is well countermanded by her immediate compliance and cooperation with the Department prior to her departure.

36. The Tribunal considers that these circumstances weigh significantly in favour of revoking the cancellation.

    The present circumstances of the visa holder

37. The visa that was cancelled was due to expire in July 2017. As the date has well passed this decision will have no actual effect on the visa itself.

    The subsequent behaviour of the visa holder concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act

38. The applicant has been reasonably cooperative with the Tribunal however she did not engage with the Department by responding to the NOICC.

    Any other instances of non-compliance by the visa holder known to the Minister

39. The Tribunal is not aware of any other instances of non-compliance  by the applicant.

    The time that has elapsed since the non-compliance

40. Three years has passed since the applicant’s non-compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

41. The Tribunal is not aware of any instances in which the applicant has breached the law.

    Any contribution made by the holder to the community.

42. The Tribunal is not aware of any contribution made by the holder to the community.

    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

43. If the applicant departs Australia while on a Bridging visa or unlawful, she will be subject to Public Interest Criterion 4014 which provides for a 3 year period from the date of departure in which the applicant may not be granted a visa without the Minister’s approval.

    Whether there would be consequential cancellations under s.140

44. There is no indication there are any consequential cancellations arising from the cancellation of the applicant’s visa.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

45. There is no indication that any international obligations would be breached as a result of the  cancellation of the applicant’s visa.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

46. There are no indications of any other relevant matters.

    CONCLUDING PARAGRAPHS

47. 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.

48. However, the Tribunal gives significant weight to the circumstances of the non-compliance and to the applicant’s mostly law abiding and cooperative behaviour in Australia. 

49. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

50. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Melissa McAdam
    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.