Rhee (Migration)

[2019] AATA 3671

Rhee (Migration) [2019] AATA 3671 (19 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yeoup Rhee

CASE NUMBER:  1813494

DIBP REFERENCE(S):  BCC2016/1080622 CLF2012/709

MEMBER:Kira Raif

DATE:19 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 19 August 2019 at 7:36am

CATCHWORDS

MIGRATION – cancellation – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – incorrect information – false identity – lengthy period of non-compliance – extensive breaches of law – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 101
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107, r 2.41

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was granted the Class BS Partner (Residence) visa on 9 May 2013. On 29 May 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 of the Act. The applicant provided a written response to the NOICC and his visa was cancelled on 28 June 2017. The applicant sought review of the delegate’s decision. On 21 December 2017 the Tribunal (differently constituted) affirmed the decision to cancel the applicant’s visa. The applicant sought judicial review of that decision and the matter has been remitted to the Tribunal for reconsideration.

3. The Tribunal wrote to the applicant and informed him about the existence of the s. 375A certificate and invited the applicant’s comments on its validity. On 12 June 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act seeking his comments or response to information which the Tribunal considered would be a reason or part of the reason for affirming the decision under review. The applicant did not respond to the Tribunal’s invitation within the time allowed. On 1 August 2019 the Tribunal wrote to the applicant noting that no response was received to the Tribunal’s invitation and informed the applicant that he lost his right to the hearing and that the Tribunal intended to proceed to the decision. The applicant did not provide any response to the Tribunal’s letter. On 5 August 2019 an officer of the Tribunal contacted the applicant’s representative to ascertain whether the applicant had any intention of providing comments or response. The representative informed the Tribunal that they had not received the Tribunal’s letter of 12 June 2019. The representative was provided with a courtesy copy of that correspondence and granted a further week to provide comments or response. The applicant provided his submission to the Tribunal on 12 August 2019 and the Tribunal has had regard to that information.

4. The Tribunal is satisfied that its invitation under s.359A of the Act was sent to the last address provided in connection with the review. The Tribunal’s letter advised that, if the comments were not provided in writing by the due date for response, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal also notes that its letter of 18 June 2019 expressly refers to its invitation to comment or respond, which was issued on 12 June 2019. Even if the applicant did not receive the original letter, the applicant was put on notice on 18 June 2019 of its existence.

5. The Tribunal finds that the review applicant has not provided the comments within the period allowed. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

   Relevant law

6. 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.

7. 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.

8. 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.

   Did the notice comply with the requirements in s.107? 

9. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

10. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. 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.

    The applicant’s immigration history

11. The applicant’s immigration history is set out in the primary decision record, a copy of which the applicant provided to the Tribunal. The applicant is a national of South Korea, born in July 1963. He first travelled to Australia in June 1996 holding a Visitor visa. He was granted another Tourist visa in Australia and then made an application for another substantive visa, which was refused by the delegate and affirmed by the Tribunal in June 1998. Upon the expiry of his bridging visa, the applicant became an unlawful non-citizen and remained in Australia unlawfully until he was located by the Department in August 2001. The applicant departed Australia in September 2001.

12. In October 2001 the applicant was granted an Electronic Travel Authority (ETA) in a different identity, using a different name (Ken Lee) and date of birth. He was granted a further Tourist visa in Australia and departed Australia on 16 April 2002. He re-entered Australia, using the same false identity, in July 2002, and since that time made several departures and re-entries to Australia as a holder of ETAs. In August 2003 the applicant was granted another Tourist visa in the false name.

13. Between August 2003 and September 2008 the applicant applied for, and was granted four Long Stay Business visas, all in his false name. The last one was cancelled in September 2008 for breach of condition 8107. The applicant again became an unlawful non-citizen and remained in Australia unlawfully until May 2011 when he was granted a Bridging D visa. The applicant departed Australia, in the false name, on 18 May 2011.

14. On 28 September 2011 the applicant re-entered Australia using his initial identity of Yeoup Rhee, holding a Visitor visa. On 21 December 2011 the applicant made an application for a Partner visa in Class UK/BS. The applicant was sponsored by Ms Ji Hyun Jang, who was granted a Class BU visa on 13 November 2011 through Ministerial intervention. The applicant was granted the Class BS Partner visa on 9 May 2013.

    Was there non-compliance as described in the s.107 notice?

15. 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, as set out in the primary decision record, was non-compliance with s.101 in the following respects:

    a.The applicant completed the application Form 47SP when making the application for the Partner visa in December 2011.

    b.Question 5 of the Application form asked whether the applicant ever had a visa cancelled. The applicant stated ‘no’.

    c.Question 14 of the application form states ‘other names you are, or have been, known by’. The applicant did not complete that question.

    d.At Question 96 the applicant signed a declaration that the information he supplied in this application was complete, correct and up to date in every detail.

16. The primary decision record indicates that that a facial comparison report was undertaken by the Department on 12 September 2016, which confirmed that Yeoup Rhee and Ken Lee ‘represent the same person’.

17. In his written response to the NOICC the applicant explained, with respect to the breach, that due to his lack of English, a migration agent completed the form, and he cannot recall whether the agent asked him about these questions. The applicant stated that he is uneducated and unskilled and relied on other people to help him with the forms. The applicant stated that he did previously travel to Australia using the name of Ken Lee but left Australia when his visa ended and did not breach visa conditions.

18. The Tribunal finds the applicant’s evidence unconvincing. Firstly, the Tribunal is mindful that by the time the application for the Partner visa was made in 2011, the applicant had been living in Australia for many years and on his own evidence, had settled in the Australian community and had been employed. The Tribunal does not accept that the applicant’s level of English or education was so poor that the applicant was incapable of understanding basic questions, for example, whether he had been known by any other name. Secondly, the applicant’s evidence is that he relied on a migration agent to fill in the form. Presumably if the applicant appointed an agent, he appointed one he could communicate with. Therefore, there should have been no difficulty for the applicant to understand the questions asked of him and provide correct answers to the questions. It was the applicant’s responsibility to ensure his application was fully completed and done in a way that no incorrect answers were given. Thirdly, it is not apparent that the applicant had difficulty responding to the other questions on the form, other than the two identified above, which would have brought the delegate’s attention to his use of a false identity and his previous visit to Australia. The fact that it is those questions that could have raised concerns about the applicant’s character and credibility that the applicant had ‘misunderstood’ but not the others, would suggest that the applicant’s failure to correctly respond to these questions was deliberate, rather than an innocent mistake as he now claims. Fourthly, the applicant confirmed in oral evidence to the first Tribunal that he had decided not to disclose details of his previous visa history in order to enable his family to be reunited.

19. Fifthly, and importantly, the Tribunal has also had regard to the information provided by the applicant’s spouse in the applicant’s Partner visa application. Ms Jang provided a statement dated 19 December 2011, in which she refers to being separated from the applicant after he left Australia for Korea, to being a single mother and a sole parent, to having little support from her husband and loss of confidence in the relationship. The couple’s present evidence is that this information is entirely untrue because shortly after his departure from Australia, the applicant returned to Australia, and lived with his family continuously using a different identity. In his submission to the Tribunal of 12 August 2019, the applicant concedes that his wife’s statement was incorrect in relation to the dates. Similarly, the applicant stated on the application form that he lived in Seoul between August 2008 and September 2011, while he lived in Australia in that period. This deliberate provision of false information by the applicant and his partner indicates that the incorrect answers were given intentionally and knowingly and that the applicant did provide incorrect answers with the intention to mislead and not disclose his previous residence in Australia.

20. The Tribunal does not accept that the applicant’s provision of incorrect answers was due to a misunderstanding or lack of English proficiency. Given the nature of the questions that form the basis of the cancellation, the Tribunal has formed the view that the applicant intentionally withheld the information about his use of a different identity so as to avoid detection of his previous visits to Australia and his past non-compliance with the immigration requirements.

21. The Tribunal is also mindful that the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s.100 provides that 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. Further, s.111 states that ss.107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.

22. In his submission to the Tribunal of 12 August 2019 the applicant concedes that there was non-compliance as outlined in the documents. The applicant states that he was desperate when he made the incorrect decision which led to the cancellation and is remorseful for his action. The applicant refers to leading an ‘unblemished life since 2011 in Australia.’

23. The Tribunal finds that the applicant failed to answer Question 14 of Form 47SP. The Tribunal finds that the applicant filled in or completed his application form in a way that all questions on it were not answered. The Tribunal finds that the applicant did not comply with s.101(a) of the Act. The Tribunal further finds that the applicant’s previously held Subclass 457 visa was cancelled. By answering ‘no’ in response to Question 5 of the application form, the Tribunal finds that the applicant filled in his application form in a way that an incorrect answer was given or provided. The Tribunal finds that the applicant did not comply with s.101(b) of the Act.

24. The Tribunal finds that the applicant did not comply with s.101 of the Act. 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?

25. 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).

26. 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 r.2.41 of the Migration Regulations 1994. Briefly, they are:

    The correct information

27. The correct information is that the applicant used a different identity, and a different passport, to enter Australia in October 2001. The applicant had been known by another name. The correct information is that the applicant’s Business visa had previously been cancelled.

    The content of the genuine document (if any)

28. This is not relevant in this case.

    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

29. There are a number of provisions to which the applicant’s identity and past immigration history would be relevant. PIC 4001 and s.501 of the Act require an assessment of the applicant’s character. The applicant’s use of a false identity and passport, making several visa applications in false names and lengthy periods of residence as an unlawful non-citizen would have been relevant to the assessment of the applicant’s character. The applicant’s identity would also be central to any assessment of his visa eligibility criteria. The applicant would have been required to show that he met PIC 4004, which related to any outstanding debt to the Commonwealth. The Tribunal finds that the decision to grant a visa was based, at least partly, on incorrect information.

    The circumstances in which the non-compliance occurred

30. The applicant claims that his English was poor and that he was uneducated and relied on a migration agent. As noted above, the Tribunal does not find these claims convincing. The Tribunal notes that in the psychological report dated 21 November 2017, which the applicant presented to the previous Tribunal, the applicant is said to have completed 12 years of schooling and two years of university study. In such circumstances, it could hardly be said, in the Tribunal’s view, that the applicant is uneducated. As for his claimed reliance on the migration agent, the Tribunal has formed the view that the applicant had the responsibility to ensure correct answers were given in his application and that all questions were answered, even if he was assisted by an agent.

31. The Tribunal has had regard to the written statement from the applicant’s partner, Ms Jang, provided in response to the NOICC. Ms Jang states that the family decided to migrate to Australia and to make an application for a visa in Australia without knowing the consequences of the refusal. They then decided to stay in Australia until 2001 when the applicant was caught working and deported to South Korea. At the time her world shattered, as her children had been living in Australia and it was difficult for her financially and psychologically but she decided to raise her children in Australia. She could not do so alone and the applicant decided to return to his family in Australia. He was trying to be a responsible head of the family. In 2012 the children received Australian citizenship and soon after she was given permanent residence. The applicant then applied for a Partner visa and was able to legally stay with the family. Ms Jang describes the hardship that the applicant would suffer if he were to return to Korea, and states that the family would suffer as a result of the separation. She states that they have assimilated to their new country and being separated is unimaginable.

32. In his oral evidence to the previous Tribunal the applicant admitted that he may not have disclosed the information about the previous visa cancellation to his migration agent because he wanted to have the best chance of getting the visa. This supports the Tribunal’s view that the provision of incorrect answers was deliberate in order to enable the applicant to remain in Australia. The applicant denied that he had deliberately withheld information about the use of a different identity but as noted above, the Tribunal does not accept that evidence because such information may have resulted in the visa being refused. The fact that the applicant’s spouse also provided false information in the Partner visa application concerning the applicant’s previous visit to Australia confirms the Tribunal’s view that the provision of false information, and the withholding of the truthful information, was done deliberately to enable the applicant to obtain the Australian visa.

1. The applicant submits, essentially, that while he did provide incorrect answers, he did so out of desperation to be with his family. He also states that his wife was under stress and anxiety and a vulnerable person. The Tribunal accepts that the applicant and his partner preferred for the applicant to remain in Australia with his family but in the Tribunal’s view, such a desire does not justify the deliberate provision of incorrect answers and the extensive breaches of the law, outlined elsewhere.

   The present circumstances of the visa holder

2. The applicant’s partner and two adult children live in Australia. Ms Jang states that it would be unimaginable for the family to separate and she refers to the hardship that the applicant would experience if he were to return to Korea. The Tribunal accepts that the separation of the family may cause hardship to the applicant and his family in Australia, although the Tribunal is mindful that the applicant may be eligible to seek another Australian visa in the future.

3. The applicant refers to his employment as a tiler, noting that he works when there is work and it is not full-time employment. In his written submission to the Tribunal the applicant states that work is casual and sporadic due to the nature of the industry and his health condition.

4. The applicant refers to his medical condition, stating that he suffered a stroke some years ago and suffers from high blood pressure for which he takes medication. His capacity to work is affected by his health. The applicant states that his wife works as a cleaner and both children contribute to the family budget. The applicant’s evidence is supported by several medical reports and the Tribunal accepts the evidence concerning the applicant’s health. The applicant has not established, however, that appropriate health care would not be available to him in his home country.

5. The Tribunal also acknowledges the character reference from Dr Lee. The Tribunal notes, however, that while Dr Lee refers to the applicant as being a good person and a community member, Dr Lee does not refer to any of the breaches of the law or the non-compliance that gave rise to this cancellation. The Tribunal is not satisfied that Dr Lee is fully familiar with the applicant’s circumstances and, to that extent, the character reference presented is of limited value.

6. The applicant states in his submission to the Tribunal that his work capacity is limited and that the family have never claimed Centrelink and have been able to support themselves financially. The Tribunal accepts that evidence. The applicant states that he will not be a burden on the Australian government and the taxpayer. The Tribunal acknowledges that evidence.

7. The applicant’s evidence, and the evidence from those who provided references for him, is that the cancellation of the visa and the applicant’s separation from his family may have significant adverse consequences for the applicant and his family members. The Tribunal is prepared to accept that evidence.

8. Overall, the Tribunal accepts that the applicant has strong links to Australia, including his immediate family, employment and social links. The Tribunal acknowledges that the applicant has been living in Australia for many years. The Tribunal also acknowledges the applicant’s medical evidence. The Tribunal accepts that the cancellation of the visa may cause considerable hardship to the applicant and his family.

   The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

9. The applicant committed several breaches of the immigration laws, as described in this decision record. The Tribunal is mindful that most of these do not relate to the applicant’s obligation under Subdivision C of Division 3 of Part 2 of the Act and may not have been subsequent to the breach in question. Nothing adverse is known about such obligations.

   Any other instances of non-compliance by the visa holder known to the Minister

10. The Tribunal has found that the applicant provided incorrect answers on the Partner visa application form by stating that he was living in Korea during the period he was in Australia. The applicant also concedes in his submission to the Tribunal of 12 August 2019 that his wife’s statement, which was provided with his Partner visa application, also contained information that was incorrect. In the Tribunal’s view, these are other instances of non-compliance with s.101 of the Act.

    The time that has elapsed since the non-compliance

11. The application for the Partner visa was made in 2011. Close to eight years has passed since the non-compliance. The Tribunal acknowledges that this is a lengthy period.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

12. There are no known breaches of the law since the non-compliance.

    Any contribution made by the holder to the community.

13. The applicant states that he is a member of a Kangaroo Korean Soccer Club and had previously played soccer, although he is now a social member. He is active in supporting Korean workers injured at work and has provided financial assistance to such workers. The Tribunal accepts that the applicant has made some contribution to the community.

14. 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 Procedures 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.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

15. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. The applicant may also lose some of the entitlements that he may have acquired as a permanent resident of Australia. The Tribunal acknowledges that the mandatory legal consequences may result in some hardship to the applicant. 

    Whether there would be consequential cancellations under s.140

16. There are no consequential cancellations under s.140.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

17. The applicant’s two children were born in 1991 and 1993 respectively. As both are over the age of 18, the Tribunal finds that they are no longer children for the purpose of this consideration. The applicant does not claim that any other children would be affected by the cancellation.

18. The applicant’s spouse and two children live in Australia and the Tribunal acknowledges that the principles of family unity may require the applicant’s presence with his family.

19. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

20. The Tribunal does not consider that international obligations would be breached as a result of the cancellation.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

21. The applicant outlined the hardship that he and his family would experience if the visa is cancelled. The applicant’s partner and two children live in Australia. Ms Jang’s evidence is that they have a close relationship and she cannot imagine being separated from her husband. The Tribunal acknowledges the applicant’s evidence that his wife suffers from anxiety and is a vulnerable person and the Tribunal acknowledges the statement from the psychologist, Jun Mo Jeong, who also refers to significant hardship that may be experienced if the applicant was required to leave the country. The Tribunal accepts that the applicant has a close relationship with his family in Australia and that he is well settled in Australia. The Tribunal accepts that the applicant’s employment opportunities in Korea may be limited, given the length of time he has lived in Australia. There is also evidence before the Tribunal concerning the applicant’s poor health, although there is little evidence that he would be unable to access adequate health treatment in Korea. Overall, the Tribunal accepts that significant hardship would be caused to the applicant and his family if the visa is cancelled.

22. The Tribunal has had regard to the applicant’s overall conduct, which the Tribunal considers relevant to the exercise of discretion. As noted above, the applicant’s immigration history is extensive. During the first visit, when the applicant used his genuine identity, the applicant remained in Australia as an unlawful non-citizen for a period of approximately three years and only made arrangements to depart after he was located by Immigration. The applicant re-entered Australia within six weeks holding an ETA in a false identity. The applicant would have been subject to an exclusion period, had his previous visit been disclosed, so it appears that the applicant deliberately falsified his identity documents, and assumed a false identity, to be able to return to Australia without delay. He made several visa applications in false names and without disclosing his previous visit and his genuine identity. He again remained in Australia unlawfully for over two and a half years after his Business visa was cancelled in September 2008 and before his departure in May 2011. He then failed to disclose these matters in the application for the Partner visa, which resulted in the present proceedings. Throughout the process of his Partner visa processing, and since he was granted the Partner visa, the applicant did not take any steps to disclose the correct information and has only done so in response to the NOICC. The applicant appeared content to rely on false information in order to remain in Australia.

23. The seriousness with which the issue of identity is considered in the migration legislation is evident from the more recent introduction of Public Interest Criterion 4020(2A), which provides for a 10 year exclusion period, with no waiver provision available, where a decision-maker cannot be satisfied of the applicant’s identity. While this provision did not apply at the time when the applicant made his application, the subsequent introduction of this provision emphasises how significant the matters of identity are considered in the migration regime.

24. In his submission to the delegate, the applicant claims that he has always been law-abiding, has not breached any Australian laws and had always supported his family without relying on public support. The Tribunal finds these claims problematic.

25. It is not in dispute that the applicant had previously travelled to Australia using a false identity and a false passport. He lived in Australia for a number of years using the false identity and made visa applications. The Tribunal finds that entering the country using a false passport is a serious offence under s.32A of the Australian Passports Act 2005, carrying a penalty of up to 10 years’ imprisonment. The applicant used the false passport to live in Australia and to obtain a driver licence. The applicant may have been in breach of s.49 of the Road Transport Act 2013 (NSW) if he obtained the licence by false statement or misrepresentation. Provision of false or misleading information to the Commonwealth (such as the Department of Immigration when completing a visa application form) is an offence under s.137 of the Criminal Code Act 1995. By using a false identity and a false passport, the applicant may have been in breach of s.234 or s.236 of the Act. The Tribunal acknowledges that the applicant has not been charged with, nor convicted of, these offences. However, the Tribunal does not consider it is correct to state, as the applicant does, that he has always complied with Australian laws. The applicant remained in Australia as an unlawful non-citizen on two lengthy occasions, in breach of the Act, and his wife’s evidence is that he also worked while an unlawful non-citizen, in breach of s.235 of the Act. Having regard to the applicant’s conduct, the Tribunal has formed the view that the applicant has flouted Australian laws and has done whatever he believed would best suit his circumstances irrespective of his obligations under Australian laws. The applicant’s claim that he has complied with Australian laws suggests that the applicant has no insight into his actions and no genuine remorse for his behaviour, contrary to his expression of remorse. 

26. The applicant also gave false information in his Partner visa application by stating that he lived in Korea between 2008 and 2011, and by providing his partner’s statement, in which she referred to being a single mother and a sole parent and being separated from her husband for 10 years. None of this information was true and the Tribunal has found that the applicant and his partner deliberately falsified information in the Partner visa application in order to hide the applicant’s presence in Australia using the false identity.

27. The Tribunal has formed the view that the applicant has shown a complete disregard for Australian laws. He has shown a willingness to deceive in order to remain in Australia.

28. The Tribunal also places weight on the fact that the breaches and the fraud were perpetrated over a very lengthy period of time. The first significant breach of the law occurred when the applicant became an unlawful non-citizen around July 1998. Throughout his stay in Australia between October 2001 and May 2011, over a period of nearly 10 years, the applicant engaged in fraudulent conduct by using a false identity in his interactions with the Australian authorities and visa applications. He continued the fraudulent conduct by failing to disclose this information in his Partner visa application, made in December 2011. Thus, the fraudulent conduct spanned over 13 years, between 1998 and 2011. It was not until he was faced with the prospect of his visa being cancelled that the applicant expressed any remorse for his actions.

29. The Tribunal considers the applicant’s immigration history and his past non-compliance to be relevant in exercising discretion whether to cancel the applicant’s visa.

30. The Tribunal has also had regard to the statement provided by the applicant’s partner, Ms Jang in response to the NOICC, dated 14 June 2017, to explain the applicant’s circumstances. She states that the family of two adults and two young children arrived in Australia in June 1996, as they made the decision to immigrate to Australia following the failure of the applicant’s business in South Korea. The Tribunal is mindful that the applicant entered Australia as a holder of a Visitor visa and was granted another Visitor visa in September 1996. If Ms Jang’s claims are true, the family never had the intention of only visiting Australia, as their intention was to immigrate to Australia. That would suggest that the applicant had given incorrect information in his Visitor visa applications by claiming to be a genuine visitor and that his intention was only to visit Australia.

31. Ms Jang submits that on advice, they made an application for another visa in Australia. Ms Jang does not suggest that she and the applicant had any basis to make that visa application or any claims to be considered, other than their desire to stay in Australia. That may suggests that the applicant was untruthful in the information he gave in that application.

32. Ms Jang states that the family decided to remain in Australia until August 2001 when the applicant was caught working ‘without an adequate visa’. it is unclear on what basis the family would decide to remain in Australia if they had no visa to do so and such a decision supports the Tribunal’s view that the applicant had very little regard for the Australian laws and made the decision on the basis of convenience to himself and his family, rather than their obligations under the law. Ms Jang’s evidence also indicates that while an unlawful non-citizen, the applicant engaged in employment in Australia. This would be a serious breach of the Act.

33. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant had not complied with s.101 of the Act. In considering the circumstances in which the non-compliance occurred, the Tribunal rejected the applicant’s claim that it was due to his lack of English, lack of education and reliance on a migration agent. The Tribunal has formed the view that the applicant deliberately withheld the information about his use of a different identity and previous visa cancellation so as not to disclose his full immigration history and past breaches of the law and so as to maximise his chances of obtaining the visa. The Tribunal has formed the view that the applicant was deliberately untruthful when completing the form in order to obtain the visa.

34. The Tribunal acknowledges that the applicant has been living in Australia for many years and his immediate family live in Australia. The Tribunal accepts that if the visa is cancelled, and if the applicant is required to leave the country, this may lead to a separation of the applicant from his family (the Tribunal is mindful that the applicant may be eligible to seek a Partner or a Parent visa in the future) and that this may cause significant hardship to the applicant and his family. The Tribunal also accepts that the applicant’s future employment prospects may be affected by his long absence from Korea.

35. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation although the Tribunal accepts that the principle of family unity would favour the applicant’s presence in Australia.

36. The Tribunal has formed the view that the decision to grant the visa was based, in part, on incorrect information. The Tribunal has formed the view that the applicant was deliberately untruthful in order to obtain or maintain the benefit of the visa. The Tribunal places significant weight on the applicant’s overall immigration history, his disregard for the Australian laws and the multiple breaches noted above. The Tribunal finds that such matters outweigh other considerations, including any hardship that may be caused to the applicant and his family if the visa is cancelled.

37. 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 be cancelled.

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

    Kira Raif
    Senior Member