Rhee (Migration)

[2017] AATA 2800

Rhee (Migration) [2017] AATA 2800 (21 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yeoup Rhee

CASE NUMBER:  1714259

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

MEMBER:Moira Brophy

DATE:21 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 21 December 2017 at 8:10am

CATCHWORDS
Migration – Cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Incorrect information in application – Failure to disclose aliases to department – Incorrect information knowingly provided – Significant time since breach – Financial and emotional hardship – Compassionate circumstances do not outweigh grounds for cancellation

LEGISLATION
Migration Act 1958, ss 101,107, 109, 359AA
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether a ground for cancellation of Mr Rhee’s Subclass 801 (Permanent Partner) visa is made out, and if so, whether the visa should be cancelled.

   APPLICATION FOR REVIEW

2. 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).

3. The delegate cancelled the visa on the basis that the applicant had not complied with section 101(a) and section 101(b) of the Act in that he had failed to disclose information on his 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.

4. The applicant, Mr Yeoup Rhee appeared before the Tribunal on 10 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife Ms Ji Hyun Jang and from the applicant’s son Mr Joo Yang Lee. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   BACKGROUND

   Tribunal Proceedings

   Applicant’s evidence

7. The applicant told the Tribunal that he could not remember the circumstances of completing the application for a Partner visa. He said that he had received assistance from a migration agent in completing the form. He did not understand the questions that were being asked of him. He was not able to recall if the migration agent who was assisting him was aware that he had had a previous visa cancelled. He said that the migration agent may not have been aware as he may not have disclosed that to him as he wanted to ensure he had the best chance he could of getting a visa.

8. When asked to comment on the fact he had left blank the question as to whether or not he had been known by another name he said he was not able to recall why he left that blank. He said he did not understand the requirements of the form and there was not a deliberate intention to mislead by leaving that answer blank.

9. When asked if he had previously been known by another name the applicant responded that he had arrived in Australia in 1996 and he had overstayed his visa. He said that around the year 2000 he had been found by the Department and deported to Korea. He said that he continued to live in Korea for some time while his wife and children were in Australia. He said it had been his intention to persuade his family to return to Korea to be with him. He said that he had some unfinished business that needed to be sorted out in Australia and he wanted to see his wife and children face to face to see if he could persuade them to come back to Korea. It was for this reason that he had come back to Australia. The applicant said that he had a brother who was two years younger than him and of similar appearance. He used his brother’s passport to enter Australia. He said the name on his brother’s passport was Ken Lee. When asked how long he had stayed in Australia he said that for the first 2 to 3 years he had been here he had used his brother’s passport to travel between Australia and Korea. He had then applied for a 457 Visa in the name of Ken Lee. He had returned to Korea in 2010 and he did not use the passport of his brother again. When asked what were the circumstances in which he had returned to Korea he said that he had been working as a tiler and the employer he was working for was based in Queensland. He was sponsored by that employer. He said the employer had a number of jobs in Queensland but he was affected by the economic crisis at the time and many of his projects were cancelled. It was in those circumstances the applicant said that he considered he should go back to Korea and find a way to survive in Korea.

10. When asked what he had done when he returned to Korea he said that he had made a lot of effort to try and settle there. He said that after some time he had heard that his children had been granted Australian citizenship and his wife had been granted permanent residency. The applicant said that he considered in those circumstances that he may be able to apply for a Partner Visa. When asked if he had considered whether there would be a consequential impact from his previous time in Australia under another name he said he really did not consider that. He said that he had made a decision to not disclose details of his previous visa history as it was important for his family to be reunited. He said that while he was aware that it was not right to fail to disclose the information he did not think beyond the fact he wanted his family to be reunited.

11. When asked by the Tribunal whether he had left of his own accord in 2010 the applicant said that he had left of his own accord in 2010.

12. The applicant said that he had been sponsored by three different employers for the 457 visa. He had been sponsored by one employer based in Sydney, one employer based in ACT, and one who was Queensland-based. He said that during the time he was working for the Queensland-based employer he had, as part of his working conditions, a flight home once every month. He had worked for that employer for around two years.

13. The applicant said that his mother lived in Korea and she was in seriously bad health. He said that she has Parkinson’s disease and is in a hospital. He last saw her in 2015. He said that he talks to his mother every fortnight when his brother visits her. He said his younger brother is still resident in Korea. He is self-employed selling and installing wallpaper. His brother is married and has a son and daughter. He speaks to his brother every fortnight and on celebratory occasions.

14. The applicant said that his mother-in-law lived in Korea and that he is in contact with her on a regular basis.

15. The applicant said that he currently lives in a rented apartment at Lidcombe with his wife and two children. The rent on the apartment is $500 per week. Each of his children contributes $150 per week to the rent. They also rent out one room to a lodger for $150 per week. The applicant said that his wife works two to three days per week in a cleaning job and he works two to three days per week as a tiler. He said that his hours of work are restricted by the fact that he is not in good health.

16. When asked about his health the applicant said that during the time he was working in the ACT he had experienced a minor stroke. He had tried to relax for the following two to three years and he has been told to not do strenuous work. He said that his children do not want him to work too hard. He said that he takes medication for blood pressure and for his cholesterol and he also takes aspirin. He said his wife was in good health.

17. The applicant said that his son was 27 years old and that he is employed at NAB. He works at the head office on financial projects. The applicant said his son is in good health and that he lives at home with his parents. The applicant said that his daughter was 25 years old and that she works in advertising for a company that is a subsidiary of Samsung. She has been working in Korea since January 2017 and is due back in Australia in April 2018. While she is working in Korea she still is contributing financially to the family. Her mother has a key card to her account and she withdraws an amount each fortnight and additional monies can be accessed if needed.

18. When asked if he belongs to any community organisations or contributes in any way to the community he lives in the applicant said that while he had lived in the same area for six years he does not participate in any community activities.

19. The applicant said that at the time he made application for a Partner visa he did not give much thought to the consequences of the answers he gave. He said he now looks back and he can see that what he did was wrong. He said he wanted to repay Australia for the benefits he has received during his time here. He said he would like to repay Australia by doing voluntary work or service to the community.

    Evidence of Ms Ji Hyun Jang

20. Ms Young told the Tribunal that she lived at Lidcombe with her husband, her son and her daughter and that they paid $650 per week rent for the apartment they lived in. She said that she and her husband were supported financially by their children. Her son contributes $500 per calendar month to the family finances and her daughter contributes $800 per calendar month to the family finances. Ms Yang said that she works two days a week as a cleaner and she is paid between $200 and $300 for that work. She said that her husband works as a tiler two days a week and that he receives approximately $600 per week. She said his income was not consistent. When asked by the Tribunal she said there was no other person living at the apartment.

21. Ms Yang said that her son works for the NA B and that he lives at home. She said that her daughter was presently working in Korea as they were preparing for the Winter Olympics. She said she had been gone since January 2017 and she would return to Australia next April. She said that she accesses her daughter’s account for the financial assistance she provides and that her daughter also had some savings before she left for Korea and she allows her mother to use those whenever necessary.

22. Ms Yang said that she and the children are all in good health. She said that her husband’s health is now improved but that he had previously had a stroke.

23. Ms Yang said that she envisaged that now their children had grown up that they would marry and have their own families. She said that she did not have siblings and her mother was in Korea. She said that if the applicant had to leave Australia it would be very difficult for her. She wanted her family to be able to all live together. She said that she did not wish to go back to Korea and she wanted to be close to her children.

    Evidence of Mr Joo Yang Lee

24. Mr Lee said that he was a business analyst at the NAB and that he understood why he was at the Tribunal. He said that he understood that his father had made a wrong decision and as a consequence had breached the laws of Australia. He wanted the Tribunal to know that his father was a different to person to the person who had made those wrong decisions. He said his father was an honest and fair person. He said it was difficult to argue against the facts but he wanted the Tribunal to know that his father had taken on and embraced Australian culture and he wanted to stay in Australia. He said he had found it difficult to engage in Australia because he had language difficulties but that was improving.

25. Mr Lee said he and his sister financially assisted their parents and they were both more than willing to continue to assist their parents both financially and emotionally.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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.

27. 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.

28. 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?

29. 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 section 101 of the Act in that Mr Rhee provided incorrect information in his Subclass 801 visa application forms regarding his previous immigration history.

30. As discussed above, and as set out in the Record of Decision on the application form 47SP Mr Rhee stated he had never had a visa cancelled and he failed to answer a question as to whether he had ever been known by any other name. The Department received information that Mr Rhee had previously entered Australia using the name Ken Lee DOB 12 August 1965. A Facial Comparison Report undertaken by the Department on 12 September 2016 confirmed that Yeoup Rhee DOB 2 July 1963 and Ken Lee DOB 12 August 1965 ‘represent the same person.’

31. On 19 December 2011 as part of the application for an 801 visa Mr Rhee signed a declaration that the answers he gave to the questions asked were correct and up to date in every detail.

32. When this was put to Mr Rhee under s 359AA at the time of hearing he agreed that he had entered Australia using his brother’s passport and that he had also given answers to questions at the time of his 801 application that were not correct.

33. The Tribunal is satisfied that Mr Rhee provided incorrect information on the Subclass 801 visa application regarding his not having had a previous visa cancelled and about his not having been known by any other name.

34. For these reasons, the Tribunal finds that there was non-compliance with s.101 by Mr Rhee in the way described in the s.107 notice.

    Should the visa be cancelled?

35. 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).

36. 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 Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

37. 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. In making its decision the Tribunal has had regard to these matters.

38. In Mr Rhee’s case, the Tribunal finds that the correct information is that he had previously had to leave Australia because he had overstayed a visa and as a consequence he was subject to an exclusion period and he had been previously known by another name. Mr Rhee provided incorrect details on his Partner application. The decision to grant Mr Rhee a Subclass 801 visa was based on the incorrect information provided. It is the Tribunal’s view that the Subclass 801 visa would not have been granted to Mr Rhee if the Department had known that he had previously had to leave Australia because of a breach of his visa conditions and he had entered Australia using the passport of another person. The Tribunal considers that the incorrect information was provided knowingly to enable Mr Rhee to achieve a positive migration outcome.

39. Mr Rhee is currently living in shared rental accommodation with his partner and children and he is working.

40. The Tribunal has taken into account that it is six years since the incorrect information was provided. There are no other known instances of non-compliance by Mr Rhee. The Tribunal has no information to indicate that there have been any breaches of the law since Mr Rhee’s breach of s.101.

41. The Tribunal accepts that Mr Rhee has a close relationship with his wife and children. If the visa were to be cancelled, Mr Rhee may not be able to see family unless they go to visit him.

42. The Tribunal has considered Mr Rhee’s evidence that he is settled in Australia and the cancellation of the visa would cause him emotional and financial hardship. The Tribunal accepts that if Mr Rhee’s visa is cancelled this would inevitably result in disruption to his plans to live and work in Australia. The Tribunal has also considered the submission made in the letter from his wife that the family received bad advice when deciding to come to Australia and following the refusal of their earlier application for refugee status. She requested it be taken into account that while Mr Rhee did not comply with Australian law his reasons for not doing so were that he was to support and maintain his family unit.

43. The Tribunal accepts Mr Rhee has made a contribution to the community by his participation in his community soccer club and of his assistance to his Korean fellow workers.

44. After considering all of the circumstances of Mr Rhee’s case, the Tribunal finds that Mr Rhee’s actions in providing incorrect information about his previous migration history were deliberate to obtain a positive migration outcome. The Tribunal acknowledges that Mr Rhee would experience some emotional and financial hardship if he were required to return to Korea. Further the Tribunal acknowledges he has some ongoing physical and mental health issues that require him to remain under the care of a doctor and returning to Korea may mean a disruption to his ongoing treatment needs and indeed an exacerbation of his present symptoms. The Tribunal has taken into account the medical reports of Dr G Smith dated 21 November 2017 and the report of Dr Jun Mo Jeong dated 21 November 2017. There was no evidence he would not be able to access further treatment in Korea.

1. However after consideration of all the evidence, the Tribunal has formed the view that the seriousness of Mr Rhee’s actions in knowingly misleading the Department by giving incorrect answers on the Subclass 801 visa application outweighs the factors in favour of not cancelling the visa.

2. The Tribunal has decided that there was non-compliance by Mr Rhee 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

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

   Moira Brophy
   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.