Park (Migration)

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.