LEE (Migration)

This matter concerned an appeal by the applicant, Ms. Sumin Lee, against the cancellation of her Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) visa. The cancellation was based on allegations of providing incorrect information in her visa application, specifically regarding whether she had ever overstayed a visa in any country and whether she had ever been removed, deported, or excluded from any country.

The primary legal issues before the Tribunal were whether the applicant had provided incorrect information in her visa application concerning her history of overstaying a visa and being removed, deported, or excluded from a country, and if so, whether the cancellation of her visa was warranted. The Tribunal was required to determine if the notice issued under section 107 of the Migration Act 1958 complied with statutory requirements and if the applicant's responses constituted non-compliance with sections 101 and 109 of the Act.

The Tribunal found that the applicant had indeed overstayed her previous visa by 31 days, making her answer of 'No' to that question incorrect. However, it determined that her answer of 'No' to being removed, deported, or excluded was not incorrect, as she had not been formally excluded from Australia. Crucially, the Tribunal considered the circumstances surrounding the non-compliance, noting that the applicant had changed her name for luck, not to deceive, and that her identifying details such as surname, national identity number, and date of birth remained consistent across her old and new passports. The Tribunal also found that the applicant appeared to have a lack of comprehension regarding her visa expiration and the subsequent issues, rather than a deliberate intention to mislead. Given these factors, including the relatively short period of overstay and her subsequent cooperation with the Department, the Tribunal concluded that the benefit of the doubt was warranted.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel her Subclass 572 Vocational Education and Training Sector visa.