Han (Migration) [2025] ARTA 1474 (2 July 2025)

1. 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).
2. 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 reg 2.41 of the Regulations. They are:

1. In her submission to the Tribunal of 10 June 2025 the applicant concedes that she had travelled to Australia in May 1999 under the identity of Ally Ping Han and was granted the Subclass 444 visa. The applicant concedes that she attempted to depart Australia using the fraudulently issued New Zealand passport, that her visa was cancelled and that she was convicted in July 2000 of illegal transfer of money and possession of a false passport. The applicant concedes that she was removed from Australia in February 2001 and was subject to PIC 4014 for three years. The applicant concedes that she was granted the Tourist visa under her present identity in April 2002 and was subsequently granted other Tourist visas under her present identity.

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

1. As noted above, s 107A of the Act specifies non-compliance in relation to an application for a previously held visa, can constitute grounds for cancellation of the currently held visa. In the present case, when applying for the Partner visa, the applicant failed to identify that she had been known by another name. That information would have been relevant in establishing the applicant's identity, for the purpose of general character provisions and PIC 4020(2A).
2. The applicant also failed to identify in the Partner visa application, the Visitor visa application and the RRVs, a previous conviction in Australia, which would have been relevant in assessing whether the applicant met the character requirements.
3. In her submission of 10 June 2025 the applicant concedes that the grant of the subclass 309 / 100 visas was infected by multiple false statements as set out in the NOICC. The applicant concedes that her prior entry to Australia and prior conviction was material to the consideration of the application made in June 2008. The applicant also concedes that the entries to Australia between May 2002 and December 2006 in her present identity were infected by the failure to disclose prior entry to Australia under the different identity and the prior conviction. The applicant concedes that the grant of the 2002 visa would not have occurred due to the operation of the three year exclusion period if the correct information was known. The Tribunal considers these concessions to be properly made.
4. The Tribunal finds that the decision to grant the multiple visas was based, in part, on incorrect information. The Tribunal also considers it relevant that the applicant may not have been entitled to be granted the Visitor visa if that application was made within the exclusion period and there is no suggestion the applicant presented any evidence concerning the waiver of the exclusion period.

The circumstances in which the non-compliance occurred

1. In her initial submissions to the Tribunal the applicant claimed she was not the one who travelled to Australia and that her passport was used by another person. In her submission made as late as on 30 April 2025 the applicant stated that she bought the passport through an agency and thought that was "the usual process". The applicant told the Tribunal that the events occurred overly 25 years ago and she had no knowledge, limited English and there was no internet at the time. The applicant states that she thought what she was doing was legal and she is the victim in this case as the agent told her she could buy a different identity. The Tribunal finds the applicant's claim utterly unconvincing. The Tribunal does not accept that the applicant believed buying a passport of another country where she has not lived and was not a citizen of, was a normal procedure. The Tribunal does not accept the applicant did not realise that substituting her photograph in another passport to which she must have realised she had no entitlement was a normal procedure. The Tribunal does not accept that the applicant genuinely believed she was following normal procedures and complying with the law when travelling to Australia on a New Zealand passport with a substituted photograph.
2. The Tribunal is also mindful that the issue here is not the applicant's entry on a false passport, but her persistent failure to disclose her previous visit to Australia and the use of a different identity in multiple visa applications. Even if the applicant somehow believed it was okay to purchase a passport and a new identity (a claim the Tribunal rejects) the Tribunal does not accept that the applicant genuinely believed it was permissible to provide false information in her multiple visa applications. The applicant's evidence to the Tribunal is that she did not want to admit the wrong-doing because there would be a serious impact on her life and her business and once she told a lie, she felt obliged to continue with it.
3. The applicant told the Tribunal that she always wanted to rectify her mistakes but did not know how to. The Tribunal does not accept that evidence which is, in the Tribunal's view, purely opportunistic. Not only did the applicant take no steps of contacting the Department to correct the information (and in the Tribunal's view, she could have approached a lawyer to help her with that process in the same way as she had approached a lawyer to help with the cancellation process), she continued to positively mislead the Tribunal when in June 2024 she denied previous entry to Australia and the use of a different identity. The applicant then told the Tribunal that she thought if the information was discovered, her visa would be cancelled, so she did not disclose the information. In the Tribunal's view, that is a more truthful statement. In the Tribunal's view, the applicant had no intention to rectify her mistakes and no intention of contacting the Department. Indeed, the applicant did everything possible, until very recently, to hide her wrongdoing in the hope her visa would not be cancelled.
4. The Tribunal has formed the view that the applicant is not a person of credibility. That is because she has persistently provided false claims not only in her various dealings with the Department as set out in the NOICC, but also in her dealings with the Tribunal when stating it was her cousin and not herself who had previously entered Australia. As recently as in March 2025 when the applicant attended a police station to provide her fingerprints, the applicant sought to establish that it was not her who made the first entry to Australia under a different name. The Tribunal finds that the applicant had been deliberately misleading and untruthful in her dealings with the Department and the Tribunal so that her visa grant would not be affected or that her visa would not be cancelled. This is consistent with the applicant's claims made in her submission of 10 June 2025 when the applicant stated that her misconduct was driven by her desire to create a better future to the family and she resorted to deceit to achieve that objective and in her mind, she was required to commit to that course of action in all her dealings with the Department. She told the Tribunal she was too scared to disclose the information because she was afraid of her visa being cancelled and of not being able to stay in Australia. The Tribunal finds that the applicant had deliberately made the decision to be untruthful to enable her and her family to live in Australia and to retain her visa.

1. In her response to the NOICC the applicant states that she had permanently migrated to Australia in 2017 and has spent over seven years in Australia. She refers to the presence of her two children in Australia, stating that they are Australian citizens. The applicant states that she is supporting her son, who is a high school student. She states that her partner resides in China.
2. In her submission to the Tribunal of 10 June 2025 the applicant states that she is divorced and has the responsibility for two children, aged 17 and 31. Her son is in year 11 and will sit the HSC in 2026. Her daughter cannot provide care and support for her brother given her career and personal commitments. The applicant states that she presently resides in China but wants to resume the role as the principal carer for her son. The applicant told the Tribunal that she speaks to her son daily. The child lives with a school friend as his sister takes frequent business trips and cannot support him.
3. The applicant told the Tribunal that when she left Australia in late 2024, she was ready to accept the decision and not remain in Australia but separation from her children was too hard to bear and she wants to be able to take care of the children. The applicant told the Tribunal that she wants to be able to visit her son at any time and support her children in the future. The Tribunal accepts that the cancellation of the visa may limit the applicant's ability to travel to Australia, although the Tribunal is mindful that since the applicant's RRV would have already expired, she would need to seek another visa irrespective of the outcome of this review.

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

1. As noted above, in her response to the NOICC and earlier submission to the Tribunal the applicant denied that she had used a different name and that she had previously travelled to Australia. The applicant provided false information to the delegate and the Tribunal concerning the circumstances that gave rise to the NOICC. In her submission to the Tribunal in June 2024 the applicant expressly stated that she is not Ally Ping Han and had not travelled to Australia using that name. That claim was patently untrue. At the applicant's request, a fingerprint comparison was arranged and took considerable time and resources. Throughout that period the applicant failed to concede the use of the different identity and the breaches and it was only upon receiving the fingerprint comparison report that the applicant made the concessions. The Tribunal finds that the applicant had not complied with her obligations under the above provision.

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

1. In her submission of 10 June 2025 the applicant concedes that her post-NOICC conduct, specifically her denial of the relationship between herself and Ally Ping Han constitutes a breach of the obligation to be truthful.

The time that has elapsed since the non-compliance

1. The application for the Partner visa was made in June 2008 and 16 years passed since that non-compliance, which is a lengthy period. The applications for the RRV were made between 2013 and 2019. About six years passed since the most recent non-compliance that was referred to in the NOICC.

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

1. While there appears to have been some breaches of the law prior to the non-compliance (and the applicant's evidence is that she has not completed her community service), there is nothing to suggest breaches of the law since the non-compliance. Although the applicant concedes that she failed in the expectation to be completely candid in her dealing with the Department and the Tribunal, that does not constitute a breach of the law. There are thus no known breaches of the law since the non-compliance.

Any contribution made by the holder to the community.

1. In her submission of 10 June 2025 the applicant states that she had lived and worked in Australia for about 15 years and had not come to the attention of law enforcement or other authorities until the NOICC was issued. (The fact that the applicant has not been found to have breached the law for a period of time cannot be considered as a contribution to the community in the Tribunal's view). The applicant states that she had never relied on Centrelink and managed two businesses, a duty free shop and an education company. The applicant presented no evidence relating to the operation of these businesses or to the payment of taxes. There is very little documentary evidence before the Tribunal to indicate that the applicant has made any contribution to the community during her residence here.
2. The applicant states that she is the mother of two Australian citizen children and her son will soon be preparing for his HSC. The applicant refers to the best interests of her minor child and the inability of her daughter to support her brother. These claims are addressed more fully below.
3. 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] FCAFC 145; (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.

Whether there would be consequential cancellations under s 140.

1. The applicant's evidence is that her two children are Australian citizens. There does not appear to be anyone whose visa would be subject to consequential cancellation if the applicant's visa is cancelled.

If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

1. The applicant's son is under the age of 18 and is a high school student. Her daughter is not a minor. The applicant's son Thomas provided an unsigned statement to the Tribunal on 10 June 2025. He states that his mother had to travel overseas due to a family matter and they did not expect she would be denied re-entry to Australia, he feels that his life has 'fallen apart'. Thomas states that he lives with a friend's family but 'it is not the same'. He does not know if his father is 'coming back' and he feels he has no real parental presence in his life and has been 'left alone'. Thomas refers to school exams and the stress and he states that he finds it hard to focus. He refers to the close relationship with his mother and states that he feels panic and requests that his mother be allowed to return to Australia.
2. Thomas Han also gave oral evidence to the Tribunal about the support he has always received from his mother and the effect of her not being there to support him, including the effect on his mental health and well-being. Thomas referred to the preparations for the HSC and the need to have structure and support in his life. The applicant's daughter Ms Sherry Feng told the Tribunal that due to her own commitments, she cannot support her brother and they need their mother to support her brother.
3. The Tribunal accepts that it would be in the best interests of Thomas that the applicant be permitted to remain in Australia. However, the Tribunal is mindful that, according to the primary decision record, the applicant's RRV had expired in July 2024 and the setting aside of the cancellation will not enable the applicant to return to Australia to support her son. The applicant will need to make an application for another visa. In these circumstances, the Tribunal gives this consideration some, but limited weight, against the cancellation.

Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

1. The applicant has been residing overseas since December 2024. The cancellation of the visa will not lead to the applicant's removal from Australia as she has already left the country. The Tribunal finds that Australia's non-refoulement obligations will not be breached as a result of the cancellation.

Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

1. The applicant has been residing outside of Australia since 2024 so that the cancelation of the visa will not result in her becoming an unlawful non-citizen, detention and removal from Australia. The cancellation of the visa will result in the application of an exclusion period in relation to certain future visa applications. (The Tribunal is mindful that in most instances, the application of the exclusion period is subject to a discretionary waiver.) If the visa remains cancelled, the applicant would lose the entitlements she had acquired as a permanent resident of Australia (noting, however, that the RRV would have already expired). She would not have the opportunity to return to Australia to be with her children unless granted another visa although that also would be the result of the expiry of her visa rather than the cancellation.

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

1. The Tribunal has considered written and oral evidence from the applicant's two children. In her written statement the applicant's daughter Ms Feng states that her mother plays an 'irreplaceable role' in the family's life and wellbeing and her presence in Australia is crucial. Ms Feng refers to a close relationship with her mother and the mother's support for the two siblings and the care for the brother. Ms Feng refers to her employment requiring travel limiting her ability to care for her younger brother stating it has become unsustainable to manage her career and responsibilities for her brother. Ms Feng refers to the brother's crucial time at school and states that she cannot provide him with the support he needs. The Tribunal is prepared to accept that the presence of the applicant in Australia will better support the applicant's children and in particular her minor son. The Tribunal also accepts that some hardship would be caused to the applicant and her children in Australia if the applicant is not able to return to Australia. In the Tribunal's view, that consideration should be given limited weight in the circumstances where the applicant's visa had already expired and the setting aside of the cancellation will not result in the applicant being able to return to Australia unless she applies for, and is granted, another visa.
2. The applicant told the Tribunal that she has spent many years in Australia and now recognises how important honesty is and she is remorseful about what has happened. She states that her children are high achievers and she feels she can make a greater contribution to Australia in the future. As noted above, the Tribunal has formed the view that the applicant's expression of remorse is opportunistic, given the recent submission of false information to the Tribunal and only the recent expression of remorse. The Tribunal notes that as recently as in March 2025 the applicant completed the fingerprint assessments in an attempt to prove that she was not the same person as Ally Ping Han. The Tribunal does not accept that the applicant is remorseful about her actions. The Tribunal is of the view that the applicant had done everything possible to mislead.
3. The primary decision record indicates that the RRV which is the subject of this review would have expired in July 2024. That is, if the present cancellation is set aside, the applicant would still be required to make an application for a visa to be able to return to Australia. The applicant claims that she may face issues with the character assessment in relation to future visa applications and in the Tribunal's view, that arises from the applicant's conduct rather than the cancellation of the visa. That is, character considerations may arise in relation to future visa applications whether or not the present cancellation is set aside.
4. The applicant suggested that her visa issues might affect her son's ability to enter a military school or join the army. There is no evidence before the Tribunal concerning the admission processes in these institutions and the Tribunal cannot determine whether the applicant's immigration history, or the cancellation of the visa, would affect her son in a way she claims.
5. The Tribunal has considered the totality of the applicant's circumstances. The Tribunal has determined that there was non-compliance with s. 101 of the Act and that there are grounds for cancelling the visa.
6. The Tribunal accepts that it is in the best interests of the applicant's minor child that the applicant should be able to remain in Australia with her son and support him in his daily life and studies. That will not necessarily be achieved if the present cancellation is set aside. The Tribunal accepts that the applicant's absence from Australia is causing a degree of hardship for the family, and in particular the applicant's two children who are Australian citizens. The Tribunal acknowledges that the best interests of the minor child are a primary consideration, albeit not a determinative one. The Tribunal gives this factor considerable weight against the cancellation but not a determinative weight because the setting aside of the cancellation will not enable the applicant to return to Australia and she would need to make another visa application to be able to return to Australia to take care of her son. She is able to do so even if her RRV remains cancelled.
7. The Tribunal has formed the view that Australia's non-refoulement obligations would not be breached as a result of the cancellation and the legal consequences of the cancellation weigh somewhat against the cancellation if they limit the applicant's future visa options, for example through the imposition of the exclusion period.
8. The Tribunal accepts that the hardship that may result from the cancellation (primarily the potential to limit future visa options to enable the applicant to return to Australia to be with her children) weighs against the cancellation. The Tribunal is prepared to accept that the applicant may have made a contribution to Australia during her lengthy residence here but gives this factor minimal weight, given the absence of documentary evidence of such contribution. The Tribunal acknowledges that considerable time had passed since the initial non-compliance and less time since the more recent non-compliance. These factors weigh against the cancellation.
9. Against these consideration the Tribunal notes the following. The applicant's non-compliance had been extensive. She provided a large number of incorrect answers in her various applications concerning the use of a different identity, her past visit to and residence in Australia and the criminal conviction. The falsehoods had been deliberate and made knowingly in order to facilitate the applicant's residence in Australia. The Tribunal also considers it significant that the applicant continued with the falsehoods in response to the NOICC and in many of her dealings with the Tribunal, conceding to the wrong-doing only after the fingerprint comparison analysis established her use of a different identity. Despite her claims, the applicant appears to have no remorse about her conduct, given that she continued to perpetrate the same falsehoods until recently.
10. The Tribunal places significant weight on the fact that the decision to grant the various visas to the applicant were based on incorrect information. The applicant's past conviction would have been relevant to all visas and to the assessment of her character. The applicant also concedes that she would not have been entitled to be granted the Visitor visa to enter Australia as she was subject to an exclusion period.
11. In the circumstances of this case, the Tribunal has determined that the greatest weight should be given to the circumstances in which the non-compliance occurred (being deliberate), the applicant's failure to comply with her obligations in response to the NOICC and her subsequent provision of incorrect information to the Tribunal, and the fact that the decisions to grant the visas were based on incorrect information. The Tribunal has decided that the factors that weigh in favour of the cancellation outweigh other factors.
12. 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.

1. The Tribunal affirms the decision to cancel the applicant's Subclass (155) (Five Year Resident Return) visa.

Representative for the Applicant: Mr Christopher H. Levingston