Park (Migration) - [2023] AATA 704

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Park (Migration)

Details

AGLC: Park (Migration) [2023] AATA 704
Case: [2023] AATA 704
Decision Date: 1 March 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Subclass 121 (Employer Nomination Scheme) visa. The applicant had arrived in Australia on an ETA visa and subsequently applied for and was granted a Student visa. Later, while offshore, the applicant applied for the Subclass 121 visa, returning to Australia as the holder of this visa. The Department later conducted integrity checks and discovered information suggesting the applicant had previously used another identity, Chiwon Park, and had a different date of birth.

The legal issues before the Tribunal were whether the applicant had failed to comply with section 101 of the Migration Act 1958 by providing incorrect information in his Subclass 121 visa application, and if so, whether the visa should be cancelled. Specifically, the Tribunal had to determine if the applicant had deliberately failed to declare his other identity and immigration history when completing the visa application form, which required him to answer questions about other names he had been known by and his previous visa history in Australia.

The Tribunal found that the applicant had indeed provided incorrect information in his visa application by stating he had no other names and by not fully disclosing his previous visa history in Australia. However, the Tribunal considered the applicant's submissions regarding the hardship that cancellation would cause to his family, including his two Australian citizen children, and the significant contribution he made to the Australian community through his unique skills. Applying the principles of administrative review, the Tribunal determined that while non-compliance had occurred, the circumstances warranted setting aside the cancellation decision.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 121 (Employer Nomination Scheme) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 PARKGiven name KYUNGDEOKOther names you are, or have been, known by (including name at birth, previous married names, aliases)N/AOn 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?NoHave 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?YesFull name Kyungdeok PARKPurpose of stay in Australia StudentDate of arrival 09-Jan-2009Date of departure 18-Mar-2010In 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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 CookeSenior MemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.