Myong (Migration)
[2024] ARTA 25
•18 November 2024
DECISION AND
REASONS FOR DECISION
Myong (Migration) [2024] ARTA 25 (18 November 2024)
Applicant:Mrs Soyul Myong
Respondent: Minister for Home Affairs
Tribunal Number: 2427183
Tribunal:Kate Millar
Place:Adelaide
Date: 18 November 2024
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa
Statement made on 18 November 2024 at 12:36pmCATCHWORDS
MIGRATION – cancellation – Subclass (155) (Five Year Resident Return) visa – initial arrival on Subclass 417 (Working Holiday) visa using alias name – subsequent return on same visa – marriage – granted a Subclass 820 Partner (Temporary) visa – divorce – Australian citizen child with current partner – best interests of the child – decision under review set asideLEGISLATION
Migration Act 1958, ss 98, 101, 107, 109, 140, 189, 376
Migration Regulations 1994, Schedule 2, r 2.41CASES
MIAC v Khadgi (2010) 190 FCR 248STATEMENT OF REASONS
APPLICATION FOR REVIEW
Mrs Myong is a citizen of the Republic of Korea (South Korea), who held a Subclass 155 (Resident Return) visa until it was cancelled by a delegate of the Minister. Her visa was cancelled after a delegate of the Minster found that she had provided incorrect information about her identity and previous visa history on her application for the visa, and in applications for previous visas she held.
Mrs Myong has applied for a review of the decision to cancel her visa. The issues before me are whether a ground to cancel her visa exist, and if so whether her visa should be cancelled.
THE HEARING
Mrs Myong appeared before the Tribunal on 28 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from her partner Mr Soon Young Kwon. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
BACKGROUND
Mrs Myong first came to Australia in 2012 as the holder of a Subclass 417 (Working Holiday) visa which she held in the name of Yura Myong. This visa ceased in October 2013. She applied for an extension of her Working Holiday visa but withdrew her application and left Australia in September 2013.
On 31 October 2013, while in South Korea, Mrs Myong applied for another Subclass 417 in the name Soyul Myong and arrived back in Australia in January 2014.
She married an Australian citizen on 25 April 2015 and was granted a Subclass 820 Partner (Temporary) visa in May 2016. She separated from her husband, and then met her current partner Mr Kwon who holds a permanent skilled visa.
Mrs Myong and Mr Kwon have a child born in 2020, who is is an Australian citizen.
CERTIFICATE ISSUED UNDER SECTION 376 OF THE ACT
The Department file includes a certificate issued under s.376 of the Act.
Section 376 of the Act applies if the Minister has certified in writing that that the disclosure of the document or information would be contrary to the public interest for any reason specified in the certificate that could form the basis for a claim by the Crown in a judicial proceeding that the information should not be disclosed, and where the Minister has not included a statement that the information must only be disclosed to the Tribunal.
If the certificate is valid, the Tribunal may have regard to the information or document and may disclose the information or document to the applicant or any other person who has given oral or written evidence to the Tribunal.
Mrs Myong was advised of the certificate and provide an opportunity to comment on the validity of the certificate.
The certificate is electronically signed and dated and provides a public interest reason that it will disclose lawful methods for preventing, detecting, or investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of those methods, and is validly issued.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s 101 of the Act. This requires non-citizens to fill in or complete his or her application in such a way that all questions on it are answered, and no incorrect answers are given or provided.
A person who does not fill in their own application form but causes it to be filled in, or it is otherwise filled in or his or her behalf, is taken to fill in their visa applications (s98 of the Act). 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 if was incorrect (s.100 of the Act).
To exercise the cancellation power under s 109 of the Act the Minister must first issue 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 in the following respects:
· In her application for a Subclass 155 visa on 9 April 2023, Mrs Myong.
o Answered ‘no’ to the question of whether she is currently, or has ever been known by any other name.
o Answered ‘yes’ to ‘The applicants declare that they: Have read and understood the information provided to them in this application’; and
o Answered ‘yes’ to ‘Have provide completed and correct information on every detail on this form, and on any attachments to it?’
o Answered ‘yes’ to ‘Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.
· In her application for a Partner (Permanent) visa 13 January 2017 she answered ‘no’ to the question of whether she is currently, or have they ever been known by any other name.
· In her application for a Partner (Temporary) visa on 28 December 2014 she answered ‘no’ to the question of whether she is currently, or have they ever been known by any other name.
· In her application for a Working Holiday visa on 24 October 2013:
o Answered ‘no’ to the question of ‘Are you known by any other names?’; and
o Answered ‘yes’ to the question ‘I am applying for a Working Holiday visa for the first time and have not previously entered Australia on a Working Holiday visa (on a passport of any country)
o Answered ‘yes’ to the question ‘I have truthfully declared all relevant details required of me in this application’.
The notice issued under s 107 of the Act also states that on 23 April 2023 in an interaction with an Australian Border Force Officer at Perth Airport Departures Mrs Myong initially denied being known by any other name, then admitted to her previous identity of Yura Myong. The notice states she was advised of the need to rectify issues about her identity and to make an appointment with the Department of Home Affairs for an interview on her return. Mrs Myong returned to Perth on 26 May 2023 but there are no records of her contacting the Department. As this is not information that Mrs Myong provided incorrect information it is not a particular that shows she breached her obligations under s 101 of the Act.
In her written response to the s 107 notice, Mrs Myong acknowledges she was known by another name Yura Myong and had previously held a Working Holiday visa. She changed her name and returned to Australia.
In her response, she states her current partner Mr Kwon completed her Subclass 155 visa application and that she thought any issues had been resolved when she was granted a Subclass 155 visa. In accordance with s 98 and s 100 of the Act, Mrs Myong is taken to have filled in the application form as she caused it to be filled in on her behalf.
Mrs Myong has acknowledged the information about her name, whether she was known by another name, and whether she previously held a Subclass 417 visa is incorrect. As a result, I find that there was non-compliance with s.101 of the Act by Mrs Myong in these respects in the way described in the s 107 notice.
Should the visa be cancelled?
As there was non-compliance in the way described in the notice given to Mrs Myong under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1) of the Act. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2) of the Act.
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).
In her response to the notice under s 107 of the Act, Mrs Myong (with the assistance of Mr Kwon) states:
· She entered Australia on 18 October 2012 under the name Yura Myong
· She travelled Australia, but visited a casino and became addicted to gambling.
· She borrowed money form a group of people including a woman named ‘Mickey’. She found out she owed Mickey $30,000AUD.
· Mickey asked for her contact details in South Korea including her passport, address in Korea, details of her parents in Korea and contact details in Korea so she can secure her money.
· Mickey offered her work as an escort to pay back the money, and the only way to do this was to change her name and get a new working holiday visa to return to Australia so she could secure her money.
· She was scared Mickey would use her Korean details to contact her family, so she changed her name and re-entered Melbourne in January 2014. Mickey picked her up from the airport and introduced her to work as an escort to repay the money she owed.
· She met her ex-husband who helped her as a friend and a man. They decided to live together, and she obtained a partner visa however their relationship ended up ‘not great’. They decided to have some space after a few years. She divorced her husband, and he supported her decision.
· Meanwhile she met a new person from South Korea and started a new relationship. They decided to move to Perth together at the end of 2018.
· They have a happy relationship, and their son was born in 2020.
· Because her English is not very good her partner helps her with all paperwork such as bank accounts and immigration. She asked her partner to apply for a resident return visa so they could travel to Korea to show their son to his grandparents and on another occasion for a family wedding.
· Her partner does not know about her name change or the reason she had to change her name, he only knew about her ex-husband and divorce.
At the hearing, she provided evidence that was largely consistent with her previous statement. She also provided evidence which was consistent with information that was the subject of the certificate issued under s 376 of the Act. This was that her ex-husband worked at the brothel owned by his brother, and her account of working as an escort.
Her explanation that Mickey took her details and those of her family which resulted in her having to return to Australia seems improbable given her return to another country outside Mickey’s control, and her account of the debt resulting from gambling was also less coherent. However, her account of owing money and being required to work as an escort to repay a debt of $30,000 - $40,000 was provided with more confidence and was consistent with her earlier statement. I accept she owed money to Mickey and was required to work as an escort to repay this money and that she met her previous husband in this industry.
While there are other allegations in the information that is the subject of the certificate issued under s 376 of the Act, this was in the form of speculation and is not supported by other information. It was also the subject of events a considerable time in the past, and I do not consider I could rely on this information to form conclusions adverse to Mrs Myong.
A. PRESCRIBED CIRCUMSTANCES
The prescribed circumstances are set out in reg 2.41 of the Regulations, and I have looked at each of these circumstances.
The correct information
The correct information for the Subclass 417 visa granted 31 October 2013 is that Mrs Myong was known by another name, Yura Myong, and that she had previously applied for and had been granted a Subclass 417 (Working Holiday) visa.
The correct information for the other visas for which she has applied is that she has been known by another name and that the information she had provided in the applicant was not truthful.
The content of the genuine document (if any)
This does not apply.
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 application for a Subclass 417 visa was granted on incorrect information that she had not previously held a Subclass 417 visa. The other visas for which she applied were partly granted on incorrect information as they did not disclose she had previously been known by another name.
The circumstances in which the non-compliance occurred.
Mrs Myong’s childhood was difficult as her father was an alcoholic and was violent. She first come to Australia because she was unable to continue attending university because her family could not afford it, and she had to give all the money she earned to her family. She said she is from a remote area in Korea and had little knowledge of the visa process, and her English is still poor.
During her pregnancy she suffered depression and has been on anti-depressants since her pregnancy. She said the advice from her doctor was that the events from her childhood had built up over time. She went to counselling at the hospital during her pregnancy but did not continue the counselling after her son’s birth.
While I do not consider Mrs Myong’s understanding of the visa system or her English is as poor as she claims, as she also said she could have returned on a student visa, I accept that she suffered hardship in South Korea, and this is a factor in the depression she suffers. I also accept that she owed money in Australia and was required to work as an escort to repay this money.
The present circumstances of the visa holder
Mrs Myong and her partner incorporated a company in 2020, and planned to open a business but it failed due to COVID.
Mrs Myong’s partner is a permanent resident of Australia and works as a head chef as a fly in fly out worker, working two weeks on and two weeks off. While her partner is a citizen of Korea, if her visa remains cancelled, he will remain in Australia as they have a house and mortgage in Australia, and he will continue working here to support the family financially.
Mrs Myong does not work and is at home with their son who is an Australian citizen. Their son has been offered enrolment at a local primary school in 2025.
Mrs Myong provide a note from her doctor stating she has been on Sertaline since 30 September 2020, and has suffered from depression.
The family is established in Australia and have purchased a house. Their son, who is an Australian citizen is also established in Australia and is due to start school next year.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Subdivision C of Division 3 of Part 2 of the Act contains obligations to fill in an application form or passenger card correctly, to not provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.
Mrs Myong was untruthful in her second Subclass 417 visa application. She has applied for and held three substantive visas since then and maintained the same untruthful response across all these applications. As Mrs Myong said, she has maintained the same incorrect answer since this time.
This means she has consistently been untruthful and filled in her visa applications incorrectly since 2013.
Any other instances of non-compliance by the visa holder known to the Minister.
Having considered her subsequent visa applications above, there are no other instances of non-compliance in the information before me.
The time that has elapsed since the non-compliance.
Mrs Myong’s first instance of non-compliance occurred in October 2013, now 11 years ago, however she has not corrected this information and has maintained the incorrect information.
In the eleven years she has been in Australia, she has established a household with her partner who is an Australian permanent resident, and they have an Australian citizen child.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The is no information before me to show that Mrs Myong has otherwise breached the law.
B. OTHER CIRCUMSTANCES
While the prescribed circumstances factors be considered, they do not represent an exhaustive statement of the circumstances that might properly 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
Any contribution made by the holder to the community.
There is no information before me about the contribution of Mrs Myong to the community.
Whether there would be consequential cancellations under s 140 of the Act
Mrs Myong’s partner holds a permanent visa, and his visa would not be cancelled because Mrs Myong’s is cancelled. As an Australian citizen her son does not require a visa.
The best interests of children
Australia is a signatory to the Convention on the Rights of the Child (‘Convention’). Art 3 of the Convention states that in all actions concerning children the best interests of the child shall be a primary consideration.
Mrs Myong’s son has visited South Korea with his parents, however he was born and has spent all his life in Australia. He has attended pre-school in Australia and has been offered enrolment in a primary school.
As noted by the delegate, the child will be granted Soth Korean citizenship as of right through his parents. According to the website of the Embassy of Koreaa to the Kingdom of Belgium and European Union and permanent Mission to the North Atlantic Treaty Organisation:[1]
If either the father or mother was a Korean national at the time of the child’s birth, the child IS A DUAL CITIZEN and the birth must be registered in Korea.
[1] Brief introduction of Korean Nationality Laws 상세보기|Notice | Embassy of the Republic of Korea to the Kingdom of Belgium and the European Union and Permanent Mission to the North Atlantic Treaty Organization Accessed 28 October 2024
If Mrs Myong’s visa is cancelled, she will be an unlawful non-citizen and liable to removal from Australia.
If she is removed from Australia, the family have decided that her son will go with her, and that he is able to do so if his birth is registered as he will be a dual citizen. There are no known barriers to him becoming a citizen of South Korea.
Whether or not he can become a dual citizen, the effect of cancelling Mrs Myong’s visa will be to separate the child from one of his parents, as Mr Kwon will remain in Australia, and it is in the best interests of the child that Mrs Myong’s visa is reinstated.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
There is no information before me to suggest Mrs Myong’s removal from Australia will result in a breach of Australia’s non-refoulement obligations.
Mrs Myong can test her eligibility for a protection visa if she contends that her removal from Australia will breach Australia’s non-refoulement obligations.[2]
The mandatory legal consequences of the cancellations.
[2] COT15 v MIBP (No 1) [2015] FCAFC 190
If Mrs Myong’s visa is cancelled, she will become an unlawful non-citizen and liable to be detained under s 189 of the Act and removed from Australia under s 198 of the Act unless she can apply for another visa.
As her visa was cancelled, there are limited other visas for which she may apply (s 48 of the Act). The types of visas for which Mrs Myong can apply within Australia include a protection visa (reg 2.12 of the Regulations). It also includes a Partner visa, for which she could apply on the basis of her relationship with Mr Kwon. However, as she will not hold a substantive visa, there are several barriers to the grant of this visa in meeting the Schedule 3 criteria for the grant of this visa and public interest criterion 4020, and the outcome of any application is uncertain.
In summary, while the known outcome is that she will be detained and removed from Australia, there is also a possibility of being granted a further visa from within Australia.
The degree of hardship that may be caused to the visa holder and any family members.
If Mrs Myong’s visa remains cancelled, she will return to Korea with her son. Mr Kwon will remain in Australia while they work out how she can return. This will cause significant emotional and psychological hardship to Mrs Myong, Mr Kwon, and their son. Mr Kwon will be separated from his wife and child. Mrs Myong suffers from depression, and it is likely her condition will deteriorate which in turn affects the care of their son.
If she returns to Korea, Mrs Myong says she and her son will have to return to live with her parents and that she would not feel safe. She said her husband does not earn enough to support her and their son to live independently in Korea.
Mrs Myong’s older sister has lived in Australia and is a permanent resident but has returned to Korea and has recently married. While she was in Australia, her sister lived with them however Mrs Myong did not think she could live with her sister is she returns to Korea because of her sister’s parents-in-law and because in their culture this would not be acceptable.
The family have a significant mortgage on the property in which they live because of the failure of their business during COVID. If Mrs Myong’s visa remains cancelled there will be considerable financial hardship.
The is real and significant emotional, psychological, and financial hardship that would be caused to Mrs Myong, Mr Kwon their son if the visa remains cancelled.
CONCLUSION
While Mrs Myong has provided incorrect information about her identity on several occasions across several visa applications, I accept that she did so due to debt and was required to work as an escort to repay her debt. She suffered a difficult childhood in South Korea, and if she returns there with her son, they will both be exposed to her father’s alcohol abuse and family violence, and the effect on her will be compounded by her depression. She has a partner who is an Australian permanent resident and a child who is an Australian citizen, and if she is removed from Australia there are emotional, psychological, and financial consequences for all family members.
I consider these factors outweigh the number of times she provided incorrect information in being granted visas in Australia and have concluded the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Kate Millar
Deputy PresidentDate of hearing: 28 October 2024
Representative for the Applicant: Self represented.
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.
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