Park (Migration)

Park (Migration) [2023] AATA 704 (1 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kyungdeok Park
REPRESENTATIVE:  Ms Alice Graziotti
CASE NUMBER:  2212942
HOME AFFAIRS REFERENCE(S):          BCC2021/326139
MEMBER:SM Michael Cooke
DATE:1 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 121 (Employer Nomination Scheme) visa.

Statement made on 01 March 2023 at 3:52pm
CATCHWORDS
MIGRATION– cancellation – Subclass 121 (Employer Nomination Scheme) visa –
applicant provided incorrect information –a three-year exclusion period –applicant deliberately did not declare his other identity and immigration history – two minor Australia citizen children – unremitting hardship to his family members and particularly to his employer – unique skills – a significant contribution to the Australian community – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 121 (Employer Nomination Scheme) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant gave the Department incorrect information in his most recent visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 2 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence the applicant’s spouse.
The applicant was represented in relation to the review by Ms Alice Graziotti who attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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 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.
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.
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 the following respects: because he has provided the incorrect information in his ENS visa application.
Evidence of non-compliance:
On 9 January 2009, the review applicant (the applicant) arrived in Australia on an Electronic Travel Authority (ETA)(subclass 976) visa, under the identity of Kyungdeok Park (M40718022). On 9 March 2009, he applied for a Student (subclass 573) visa, which was granted on 11 March 2009.
On 12 November 2009, the applicant was granted a Student (Subsequent Entrant) (subclass 572), as the dependant of his spouse - Hyemin LEE (born 25 June 1984).
On 9 June 2010, the applicant lodged an offshore application for an ENS (subclass 121) visa application. He returned to Australia as Kyungdeok Park (M40718022) on 3 September 2010, as the holder of the ENS visa.
As part of the ENS visa application, the applicant completed form 47ES ‘Application for employer sponsored migration to Australia’- hereafter referred to as ‘Form 47ES’, and provided the following information in part (answers in italics):
On page seven, at Part B – Your details,
Main Applicant’s full name (as shown in your passport or travel document)
Family name PARK
Given name KYUNGDEOK
Other names you are, or have been, known by (including name at birth, previous married names, aliases)
N/A
On pages 19 and 20, at Part H – Processing details,
Have you or any person included in this application held, or currently hold a Bridging visa E?
No
Have you or any dependent family members (migrating with you or not) who have previously been to Australia, held or currently hold a visa for travel to Australia?
Yes
Full name Kyungdeok PARK
Purpose of stay in Australia Student
Date of arrival 09-Jan-2009
Date of departure 18-Mar-2010
In which countries have you and your partner lived for 12 months or more during the last 10 years?
The applicant provided the following information in part:
·South Korea – Dec 1999 to Dec 2008 – 64 Yongdang-ri, Samho-eup, Youngam-gun, Jeollanam-do, South Korea 526-896
On page 27, at Declaration, he provided the following information in part:
Warning: Giving false or misleading information is a serious offence.
·I declare that the information I have supplied in this application is complete, correct and up to date in every detail.
·I understand that if I gave false or misleading information, my application may be refused, or any visa granted may be cancelled.
Based on the above information, as well as meeting all other relevant criteria, the applicant was granted an ENS visa on 3 September 2010.
Following the grant of his ENS visa, the Department conducted integrity checks on the information and documents he provided in support of his ENS visa application. Information available to the Department indicated the applicant had previously been known by another name: Chiwon PARK, born 12 July 1982.
A forensic examiner conducted a facial image examination of photographs in the identities of Chiwon Park and Kyungdeok Park, and found them to match, indicating there are indications they represent the same person.
Departmental records contain the following information about Chiwon Park, born 12 July 1982:
·Granted a Working Holiday (subclass 417) visa to work and travel around Australia on 29 November 2005 and arrived in Australia on 16 February 2006
·Granted a further Working Holiday visa on 18 September 2006
·Departed Australia on 14 February 2008
·Granted an Electronic Travel Authority (ETA) (subclass 976) visa on 18 February 2008 and arrived in Australia on 1 March 2008
·The ETA visa was valid until 1 June 2008 and five subsequent Bridging E (subclass 050) visas were granted on 2 June 2008, 23 June 2008, 30 June 2008, 15 July 2008 and 15 August 2008
·Departed Australia on 3 November 2008
Upon arrival in Australia each passenger is required to complete an incoming passenger card to notify the Australian government of their circumstances.
On 14 June 2007 Chiwon Park arrived in Australia and completed an incoming passenger card.
On 19 April 2010 the applicant arrived in Australia in the identity of Kyungdeok Park and completed an incoming passenger card. Both incoming passenger cards contain the same contact telephone number and email address.
Given the information above, the delegate considered the applicant had also been known as Chiwon Park, born 12 July 1982.
Based on the above, the delegate considered that the applicant had not complied with section 101(b) of the Act and, accordingly, his visa was liable for cancellation consideration under s109 of the Act.
Non-compliance with Sections 101(b)
The delegate considered that the applicant had further not complied with section 101(b) of the Act, because he provided the following incorrect information in his ENS visa application:
·On page seven of the ENS visa application form, when he answered ‘N/A’ to the question ‘Other names you are, or have been, known by (including name at birth, previous married names, aliases)’.
·On pages 19, when he answered ‘No’ to the question ‘Have you or any person included in this application held, or currently hold a Bridging visa E?
·On page 19 and 20, when he failed to declare that he had previously been to Australia using the identity of Chiwon Park, born 12 July 1982 in response to the question ‘Have you or any dependent family members (migrating with you or not) who have previously been to Australia, held or currently hold a visa for travel to Australia?’
·On page 21, when he answered that he had resided in South Korea between December 1999 to December 2008 in response to the question ‘In which countries have you and your partner lived for 12 months or more during the last 10 years?’
·On page 27, under the heading ‘Declaration’ and by signing the Form 47ES he declared he had provided complete, correct and up-to-date information in in the ENS visa application.
The delegate considered that the applicant’s answers to these questions were incorrect because information before the Department indicated he has previously been granted Working Holiday visas, an ETA visa, and multiple Bridging E visas and resided in Australia for approximately two and half years using the identity of Chiwon PARK.
The applicant provided the following information in association with his reasons not to cancel:
·Copy of notification of ENS visa grant (dated 3 September 2019)
·Copy of Western Australian driver’s licence (dated 29 September 2011)
·Australian Citizenship certificate for Jung Soo Kim (dated 14 November 2012)
·Divorce order for the marriage between the visa holder and his former spouse Hyemin Lee (dated 24 September 2013)
·Marriage certificate for the visa holder’s marriage to his current spouse, Jung Soo Kim (dated 17 June 2014)
·Translated copy of visa holder’s birth certificate and change of name (dated 9 December 2014)
·Copy of Western Australian birth certificate of Ayden Junjae Park (dated 25 May 2017)
·Copy of Australian passport of Ayden Junjae Park (dated 8 August 2017)
·Copy of visa holder’s Republic of Korean passport (dated 8 February 2018)
·Copy of Western Australian birth certificate of Henry Minjae Park (dated 3 July 2020)
·Support letters from visa holder’s friends and colleagues (dated 4 August 2022, 12 August 2022, 15 August 2022)
·Nationally Coordinated Criminal History Check Certificate issued to PARK, Kyungdeok on 27 July 2021 – recording no disclosable court outcomes.
·Statutory declaration from visa holder’s wife (dated 14 August 2022)
·Home loan documents (dated 22 June 2021, 25 June 2022)
·Letters from Child and Adolescent Health Services regarding Ayden’s development including a referral for an audiologist appointment (dated 3 December 2021)
·Email from school psychologist to the visa holder’s wife regarding Ayden (dated 14 June 2022)
·Photographs with family and friends
·Tax records for the applicant (dated from 2012 to 2022)
·National Police Check application reference number for the applicant (dated 15 August 2022)
·Australian Federal Police Check (dated 24 August 2022)
·Statutory declaration by visa holder (dated 29 August 2022)
·The applicant stated he was born Chiwon Park on 12 July 1982 in the Republic of South Korea.
·He outlined his immigration history to Australia as Chiwon Park, stating he first came to Australia in 2006 on a Working Holiday visa.
·He was granted a further Working Holiday visa in 2006, and Electronic Travel Authority (ETA) in 2008, and then five Bridging E visas in 2008.
·The applicant provided an Australian Federal Police certificate (dated 24 August 2022), which provides that on 16 October 2008, he was convicted (as Chiwon Park) for Affray (T1) and sentenced to a 12-month good behaviour bond (s9) and ordered to pay the court costs of $73. The certificate also indicates he was charged (as Kyungdeok Park) on 2 March 2011, for driving with low range prescribed concentration of alcohol, for which he was fined $500, ordered to pay court costs of $79 and his driver’s licence was disqualified for three months.
·The applicant claimed that following his conviction, he tried to apply for a Student visa but could not do it whilst onshore. He further claims he returned to Republic of South Korea and tried to lodge a Student visa application there, however, he was unable to do so, due to the three-year exclusion period.
·He admits ‘he made a big mistake after that’, when he changed his name to Kyungdeok Park and obtained a passport in that identity, and then applied for an ETA but did not declare his previousname in that application. He further admits he returned to Australia on the ETA, applied for two Student visas and a permanent visa in his new name, without declaring his other identity, his previous time spent in Australia or his conviction in any of the visa applications.
·He states he has been ‘too scared to apply for any new visas or citizenship in Australia’ because he knew he would be found out for what he had done.
·The applicant claims he separated from his first wife Hyemin Lee in December 2010, and their divorce was finalised on 23 August 2013.
The applicant submitted that he has been working full-time in Australia since 2011, married an Australian citizen Jung Soo KIM (born 27 July 1980) on 17 July 2014, and has two children Ayden Junjae PARK (born 15 May 2017) and Henry Minjae PARK (born 19 June 2020), who are both Australian citizens.
The applicant’s older son Ayden has behavioural and other health issues which are being investigated, and the applicant has submitted correspondence from the Child Development Services (CDS) which discuss referrals for Ayden’s assessments for vision, hearing, growth and development, and noted concerns. It appears CDS is working with the applicant and his wife to organise plans to support Ayden’s developmental issues, and the via holder claims he and his wife are deeply concerned about the impact visa cancellation will have on Ayden.
He submits he is the sole income earner for his family as his wife cares for the children, and if his visa is cancelled, his family will experience significant financial hardship as they have two mortgages, and medical bills due to his son Ayden’s developmental issues. He further claims he will be unable to earn enough by working in Republic of South Korea to support his family.
The applicant states that if his visa is cancelled, it will impact his older son Ayden, and it will be difficult for the visa holder’s wife, both emotionally and financially, to look after both the young children on her own.
He claims his family will not move to Republic of South Korea with him as they will not be able to cope, and it would be too difficult for his children to adjust to the change, especially Ayden, due to his medical and behavioural problems, and because the applicant’s wife has lived in Australia for over 20 years.
The applicant claims he legally changed his name to Kyungdeok Park as he knew he had a three-year exclusion period to enter Australia, and had he declared his previous identity, conviction and immigration history in Australia, it would have alerted the Department. While the information itself may not have prevented him from being granted the ENS visa, he acknowledges this may have impacted the grant of his ETA and Student visas, and he should have declared the correct information. However, he insists he did not gain any migration advantage by providing the incorrect information to the Department.
The applicant claimed he currently works for Norwest Crane Hire Pty Ltd as a crane operator, he was head hunted for this role by his Chief Operating Officer, and if his visa were cancelled, it will affect his employer and their contracts with Rio Tinto and Roy Hill, delaying projects and response times.
He submitted that he has always been employed while in Australia, paid taxes, has not had any other convictions, contributes to the Australian economy, and goes to church when he is not working. He further submitted he is extremely remorseful and what he did is a big mistake, but since then he has not been in any trouble with the law and has tried his best to live a good life.
For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
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 reg 2.41 of the Regulations. Briefly, they are:
· the correct information
The correct information is that the applicant did not declare that he had previously used another identity, namely, Chiwon Park, and he has previously travelled to, and stayed in, Australia, under the identity of Chiwon Park, in his ENS visa application. The applicant has, in his response to the Notice, admitted he deliberately did not declare his other identity and immigration history, because he knew the three year exclusion period was applicable to him when he departed Australia as Chiwon Park in December 2008.
The Tribunal acknowledges that the applicant has voluntarily provided additional incorrect information which he provided in his ENS visa application about his conviction, it remains a fact that he deliberately did not declare he had used the identity of Chiwon Park, and that he had previously been granted visas to (and had lived in Australia) as Chiwon Park.
The Tribunal gives this consideration significant weight in favour of cancelling the visa.
· the content of the genuine document (if any)
Not applicable.
· whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document
The Department’s decision to grant the applicant an ENS visa was based, in part, on the information submitted by him in association with his ENS visa application. Notably, the applicant failed to declare he had used another identity, namely Chiwon Park, and that he had previously travelled to, and lived in, Australia, as Chiwon Park.
Evidence before the Department, including information provided voluntarily by th eapplicant personally indicates that he was granted visas and has lived in Australia as Chiwon Park for at least two years, He was also issued identity documents by Republic of South Korean authorities in the identity of ‘Chiwon Park’.
He admitted in his response to the Notice, that he has a conviction recorded in Australia in the identity ‘Chiwon Park’, and he deliberately did not present this information in his ENS visa application.
The Tribunal surmises that if the Department had been aware of the correct information prior to the grant of the ENS visa, the Department would have likely conducted additional integrity checks and scrutinised the visa application further. This might have led to a different outcome than the grant of the ENS visa application. This is especially so given he was subject to a three-year exclusion period when he departed Australia as Chiwon Park in December 2008.

The Tribunal gives this consideration some weight in favour of cancelling the visa.
· the circumstances in which the non-compliance occurred
The circumstances in which the non-compliance occurred were apparently that Departmental Integrity checks were carried out on the information and documents the applicant provided in support of his ENS visa application. This check indicated that the applicant had previously been known as Chiwon PARK, and had travelled to, and lived in, Australia, under that identity. Furthermore, a forensic examiner who conducted a facial image examination of photographs of the identities of Chiwon Park and Kyungdeok Park, found them to match - thus indicating they represented the same person.
The Tribunal observes that the applicant has accepted his non-compliance and provided additional information about the incorrect information which he provided earlier in his ENS visa application. However, the fact is that he deliberately did not declare he had used another identity (Chiwon Park) for at least two years whilst he lived in, and travelled to and from, Australia - under his current identity.
There is no information before the Tribunal to indicate there are any ‘circumstances beyond his control that caused the non-compliance’, and his response the applicant admits he was aware that he was the subject of a three-year exclusion period. The Tribunal presumes that if he had declared his other identity and immigration history, it may have affected the grant of his Australian visas.
The fact of the matter indicates the applicant deliberately did not declare his identity of Chiwon Park as well as his immigration history in Australia as Chiwon Park, in order to gain a positive immigration outcome.
The Tribunal is of the view that such repugnant activity impugns the effective functioning of visa system. Thus the Tribunal gives this consideration significant weight in favour of cancelling the visa.
· the present circumstances of the applicant
The applicant last arrived in Australia on 9 September 2010 and has not departed Australia since.
He is married to an Australian citizen, and they have two minor Australia citizen children. One of his children has developmental issues which require extra care from his parents.
In his response to the Notice, the applicant advised that he has been working full-time in Australia since 2011. He currently works for Norwest Crane Hire Pty Ltd as a crane operator, and he has purchased two homes in Western Australia. He provided evidence of his employment, his finances, his wife and children’s Australian citizenship - along with strong support letters from his colleagues. All in all, evidencing proof that he and his family members have developed strong employment, social and financial ties to Australia.
Presumably, if his visa cancellation were affirmed, he would cease to have work and study rights plus the right to reside in Australia. The Tribunal finds from the evidence before it that a visa cancellation outcome would obviously result in serious hardship to the applicant. However, the Tribunal has a significant concern that affirmation of the cancellation would cause unremitting hardship to his family members and particularly to his employer. This is because of, firstly his family situation with his Australian wife and sons. Very importantly, his unique skills in performing work in the nationally important West Australian mining sector (his employer informs in additional information) would be negated by affirmation of the cancellation.
As such, the Tribunal gives this consideration maximum weight against cancelling the visa.
· the subsequent behaviour of the applicant concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has apparently been co-operative and prompt in his dealings with the Department in relation to his current Notice. He voluntarily providing additional information about incorrect answers he provided in his ENS visa application. He has been promptly answered Tribunal correspondence.
The Tribunal gives this consideration some weight against cancelling the visa.
· any other instances of non-compliance by the applicant known to the Minister
The Tribunal is not aware of any other instances of non-compliance in Australia by the applicant.
The Tribunal gives this consideration some weight against cancelling the visa.
· the time that has elapsed since the non-compliance
The non-compliance occurred on 9 June 2010, when the applicant lodged his ENS, a little over 12 years ago. The Tribunal considers this to be a substantial period of time, especially given he now has established a life for himself in Australia through his employment and has an Australian-citizen family.
As such, the Tribunal gives this consideration heavy weight against cancelling the visa.
· any breaches of the law since the non-compliance and the seriousness of those breaches
There is information before the Tribunal to indicate some adverse information in relation to the applicant since the non-compliance.
The applicant has one conviction from 2011 for low range drink driving. There is no other evidence of any breaches of the taw since the non-compliance occurred in June 2010.
The Tribunal gives this consideration minimal weight in favour of cancelling the visa.
· any contribution made by the applicant to the community.
The applicant’s representative has submitted evidence that:
Mr Park is a crucial member of the Norwest Crane Hire team. He is working in a critical sector - mining - in regional Western Australia. Mr Wilkes cannot speak more highly of Mr Park's skills and work ethic. He describes Mr Parks as follows:
“Bob has always demonstrated honesty, integrity and superior performance. Bob is a preferred crane operator for Rio Tinto (on all Rio Tinto Pilbara sites) and is inducted and verified for competency to operate all RTIO owned cranes which is a rare group across Australia. Bob is also a preferred crane operator for Roy Hill at both the mine and port, due to his superior, reliable and safe performance over the years. Bob's significant experience and skillset as a crane operator on all makes and models of cranes is an absolute rarity in Australia.”
The Tribunal (in view of the above testimonial) gives significant positive weight (against affirmation of cancellation) to the representative’s claim that “given the significant role the mining industry has played in ensuring the Australian economy stabilised and continues to grow post-pandemic, Mr Park's role in regional Western Australia is a significant contribution to the Australian community.
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.
Consideration / discussion of the prescribed factors; any matters raised by the applicant in response to the s 107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:
·whether there would be consequential cancellations under s 140.
Not applicable as the applicant’s family are Australian citizens.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
The applicant has two Australian-citizen children one of whom has developmental issues which are still the subject of medical investigation. Such is the seriousness of (the applicant’s son) Ayden’s condition that the applicant’s wife has to be a full-time ‘carer’ for him.
In January 2023, a specialist (Dr Tan) stated:
The assessment showed Ayden meets the diagnostic criteria for the combined presentation of the Attention Deficit Hyperactivity Disorder (ADHD) which the observation and the informal testing/ interaction with Ayden was significant Associated with this are significant features of the autism spectrum, motor skills difficulties (gross motor>fine motor), language difficulties, emotional dysregulation and possible literacy/ numeracy difficulties.
The Tribunal is satisfied from the copious evidence before it that it is in the best interests of the applicant’s children not to affirm cancellation of the applicant’s visa.
The Tribunal gives this consideration maximum weight against cancelling the visa.
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The Tribunal observes that Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
The Tribunal accepts that the applicant’s wife would not be able to return to Korea with her children to be with her husband under the circumstances of her Australian-citizen child’s developmental issues. The Tribunal notes also that:
Ms Kim is an Australian citizen and would not be eligible for dual citizenship with South Korea. She would not be entitled to the benefits available to South Korean citizens, and her entire work and tertiary education histories have taken place in Australia.
A decision (through affirmation of the cancellation) to remove the applicant as a father would also, in the Tribunal’s view, be deleterious to the family in its particular circumstances. A paper (tendered by the applicant’s representative) and published by the US Department of Health and Human Services states:
One study of school-aged children found that children with good relationship with their fathers were less likely to experience depression, to exhibit disruptive behaviour, or to lie and were more likely to exhibit pro-social behaviour.13 ...In addition, numerous studies have found that children who live with their fathers are more likely to have good physical and emotional health, to achieve academically, and to avoid drugs, violence and delinquent behaviour.
As such, the Tribunal gives this consideration maximum weight against cancelling the visa.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
If the applicant’s ENS visa were cancelled, he would become an unlawful non-citizen. Under section 189 of the Act, the Department is required by law to detain him. He would be immediately liable for removal from Australia under section 198 of the Act if he did not depart voluntarily. The applicant would also be subject to section 48 of the Act and PIC 4013, both of which would impact his ability to be granted certain types of visas.
Were the applicant to be detained or removed from Australia, he would not be able to continue to financially support his family. The applicant is the sole income earner for his family which consists of his Australian-citizen wife and two Australian-citizen children. They would be severely impacted if Mr Park was not permitted to remain in the Australian community.
As such, the Tribunal gives this consideration heavy weight against cancelling the visa.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
The applicant’s representative has opined on the nature of the hardship affirming cancellation would cause the applicant:
The emotional and financial support Mr Park provides to Ms Kim is invaluable in raising their two boys. Mr Park is the sole financial provider for the family. If his visa was cancelled, Ms Kim would suffer significant emotional, mental, practical and financial hardship.
The Tribunal has considered the excellent submission tendered by the applicant’s representative. She has made a forthright and comprehensive attempt to present the case for setting aside the applicant’s cancellation. She has not resiled from addressing the applicant’s significant adverse visa behaviour and has been both fair and frank, in her submission.
However, the Tribunal takes a comprehensive view of the required considerations. It is the Tribunal’s finding that the issue of family hardship is its primary consideration in allocating weight for or against cancellation.
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 not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 121 (Employer Nomination Scheme) visa.
Michael Cooke
Senior 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.

[2023] AATA 704

1 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice