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File number: 1714259

Tribunal: Member Moira Brophy

The applicant’s visa was cancelled by a delegate of the Minister for Immigration and Border Protection. On 21 December 2017 the Administrative Appeals Tribunal affirmed the decision.  

The applicant, Mr Rhee, had his Subclass 801 (Partner) visa cancelled because he breached section 101 of the Migration Act 1958 (the Act) by failing to disclose information on his visa application.

Mr Rhee was deported from Australia in 2000 for overstaying his visa. He continued to visit Australia until 2010 by falsely presenting himself using his brother’s passport and this way he was granted a Subclass 457 visa. His family continued to reside in Australia throughout this time and when his wife became a permanent resident he applied for a Partner visa. In his application he failed to provide his previous visa history. 

The fact he failed to disclose this information was not in issue, however cancellation of the visa under section 109 of the Act is not mandatory. The Tribunal had to consider the list of circumstances in regulation 2.41 to the Migration Regulations 1994 which are meant to guide a decision on whether or not to exercise the discretion to cancel a visa. The circumstances that were most relevant in this case were the present circumstances of the visa holder; whether the decision to grant the visa was based on incorrect information; the subsequent behaviour of the visa holder; the time that has elapsed since the non-compliance; any contribution made by the holder to the community and the consequences of cancelling the visa.

The Tribunal considered the listed circumstances in Mr Rhee’s case. He lived in shared rental accommodation with his partner and children and he had a close relationship with them. If the visa was cancelled, he may not be able to see his family unless they go to visit him. The Tribunal acknowledged that Mr Rhee would experience some emotional and financial hardship if he were required to return to Korea. He had 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. He had made a contribution to the community by his participation in his community soccer club and of his assistance to his Korean fellow workers.

After considering all the evidence, the Tribunal formed the view that the seriousness of Mr Rhee’s actions in knowingly misleading the Department by giving incorrect answers on the visa application outweighed the factors listed above in favour of not cancelling the visa. The visa should be cancelled.