1719156 (Migration)

1719156 (Migration) [2019] AATA 6656 (12 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1719156
MEMBER:Helena Claringbold
DATE:12 November 2019
PLACE OF DECISION: Sydney
DECISION: The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the visa applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visa:
·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.
·The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the secondary visa applicants meet the following criteria for Subclass 309 (Spouse (Provisional)) visas:
·Public Interest Criterion 4020 for the purposes of cl.309.323 of Schedule 2 to the Regulations.

Statement made on 12 November 2019 at 9.40am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional) –– false or misleading statement – claimed no outstanding liabilities – evidence of outstanding debts provided by Chinese court – credibility issues – motives questioned – compassionate or compelling circumstances – carer for sponsor – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 359A, 362A
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 309.323, 309.225, 309.311, Schedule 4, Public Interest Criteria 4001, 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 7 September 2016, Mrs [A], also known as Ms [AA], (the visa applicant) applied for a Partner (Provisional) (Class UF) visa. The application was based on her spousal relationship with Mr [B], the sponsor and review applicant. [Child 1], [Child 2] and [Child 3], who are the visa applicant’s children, are included in the application as secondary visa applicants.
On 17 August 2017, a delegate of the Minister of Immigration and Border Protection refused to grant the visas. The delegate was not satisfied that the visa applicant met Public Interest Criterion (PIC) 4020. Therefore, the visa applicant did not meet cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act) and the secondary applicants did not meet cl.309.311 of the Migration Regulations. On 23 August 2017, the sponsor provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.
On 31 May 2019, the Tribunal invited the sponsor to a Tribunal hearing on 3 July 2019. On 6 June 2019, Ms [C], the sponsor’s migration agent informed the Tribunal that the sponsor and the visa applicant would be attending the Tribunal hearing of 3 July 2019. She stated that she would send supporting documents by 26 June 2019.
On 17 June 2019, the sponsor emailed the Tribunal via Ms [C] a request for access under s.362A of the Act, to written material on the Department of Immigration and Border Protection’s (the Department’s) file and on the Tribunal’s file. On 25 June 2019, the Tribunal wrote to the sponsor and advised him that in order for him to obtain access to personal information relating to the visa applicant and the secondary visa applicants, consent from them was required. The Tribunal attached MR14 Form consent for release of personal information. The sponsor was asked to return the completed forms to the Tribunal. On 25 June 2019 at 3:19 pm, Ms [C] informed the Tribunal that she would have the MR14 forms completed and would send them by email to the Tribunal.
On 25 June 2019, the sponsor advised the Tribunal that he had not received the requested s.362A of the Act information. He requested and was granted a postponement of the Tribunal set down for 3 July 2019. On 26 June 2019 the Tribunal received an email from Ms [C] with the completed MR14 Form.
On 27 June 2019, the Tribunal wrote to the sponsor and invited him to a Tribunal hearing on 23 July 2019. On 27 June 2019, Ms [C] informed the Tribunal that the sponsor and the visa applicant would be attending the Tribunal hearing of 23 July 2019. On 5 July 2019, the Tribunal wrote to the sponsor via Ms [C] and provided the requested information under s.362A of the Act, with the exception of certain information either partially or fully excluded under Australian Privacy Principle (APP 6).
On 22 July 2019, Ms [C] wrote to the Tribunal requesting a postponement of the Tribunal hearing set down for 23 July 2019. She requested that certain information be provided to the sponsor. The Tribunal rescheduled the Tribunal hearing for 28 August 2019.
On 28 August 2019, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the visa applicant’s ex-husband and a witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages and an interpreter in the Cantonese and English languages. The sponsor’s migration agent attended the Tribunal hearing. However, the sponsor was assisted at the Tribunal hearing by a barrister who was assisted by a solicitor.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affair’s (the Department’s) case files and the Tribunal’s case file and the evidence at the Tribunal hearing.
ISSUE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.309.225 of Schedule 2 to the Regulations, for the grant of the visa.
BACKGROUND ON THE EVIDENCE
The visa applicant was born in 1975 in Foshan City, Guangdong Province, China. Her father is deceased. Her mother and [siblings] live in China. [In] September 2000, she married Mr [D] (Mr [D]). [In] April 2016, Mr [D] and the visa applicant divorced. There are three children from this relationship who are the secondary visa applicants. They were born in [certain years] respectively. In January 2014, the visa applicant entered Australia. She is the holder of a [temporary] visa which expires in 2020.
The sponsor was born in [a certain year] in NSW, Australia. His parents are deceased. He does not have any siblings. [In] June 1971, he married Mrs [E]. [In] August 1977, Mrs [E] and the sponsor divorced. There are two children from this relationship who were born in [certain years]. They live in Australia.
In September 2015, the parties met in [Suburb 1], NSW. In March 2016, their relationship commenced. [In] June 2019, the parties married in [Suburb 2], NSW. In July 2016, the parties started to cohabitate in a jointly rented apartment in [Suburb 3].
CONSIDERATION OF CLAIMS AND EVIDENCE
Public Interest Criterion 4020
Public Interest Criterion 4020 (PIC 4020) as required by cl.309.225 of Schedule 2 to the Regulations, broadly speaking, requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
As recorded in the delegate’s decision record; on 18 July 2017, the visa applicant took part in a telephone interview with officers of the Department. The visa applicant gave evidence that she didn’t have any outstanding liabilities in China. On the same day the sponsor provided the same evidence.
The delegate recorded the following: a search conducted on open sources on the internet found that the applicant was named as defendant in a number of court cases in China. The court cases involved financial disputes of [a large amount of money]. Departmental records indicated that in the visa applicant’s previous dealings with the Department in November 2014, she had given oral evidence in relation to money she and her family members borrowed from banks and loan companies. There was also information suggesting that the visa applicant was aware of the court cases against her. According to search results from public sources, one of the court cases with the visa applicant as defendant was [details deleted] [in] December 2013. In a [court] decision made against the applicant in 2015, she was sued in her capacity as [Occupation 1] of [Company 1].
On 20 July 2017 the applicant was invited to respond to the information and provide reasons relevant to the PIC 4020 waiver provision.
On 2 August 2017, the visa applicant provided a NAATI translated copy of her response to these matters. She stated the following: when the question was put to her about outstanding liabilities in China, she responded no, because, she didn’t have any outstanding property or car or loans. When the Departmental officer stated that Mr [D], her previous husband had liabilities in China, she told the officer that she and Mr [D] were divorced ([in] April 2016) and she had nothing to do with his previous business. Mr [D] told her that the bank loan was a mortgage loan and that the liabilities were cleared. She claimed that when she and Mr [D] discussed divorce, Mr [D] gave an oral agreement that all current or previous liabilities or disputes had nothing to do with her and he would be responsible ‘for all of that’. During their marriage Mr [D] provided her with [an amount of] cash monthly. She knew very little about what he did outside of the home. She stated that Mr [D] started a [project] of the ‘[Named]’. As Mr [D]’s wife, she signed her name on the loan application form for the project. Afterwards Mr [D]’s company fell into dispute with local government officials. In December 2013, Mr [D] travelled to [Country 1] to conduct a survey. After her arrival in Australia she heard that Mr [D] went to [Country 2] and was in a relationship with another person. She divorced Mr [D]. [In] June 2016, she married the sponsor.
The visa applicant provided a declaration dated 8 August 2017 from Mr [D]. He stated the following: prior to him and the visa applicant divorcing, they had an oral agreement on their debt and disputes. Any current or previous debt or dispute affiliated with [Company 2], [Company 1] or any companies under their names are all his responsibilities. They would have nothing to do with the applicant. The visa applicant had no involvement in the operation of any company. She took care of the family. She signed the loan agreement in accordance with the regulation of the bank. All the liabilities and disputes of the companies were from the [project] of [specified] in Shunde, Guagndong Province. At the time, all the bank loans he borrowed were mortgage loans. When he could not repay the loan, the bank would file a lawsuit in accordance with the loan agreement, and put the collateral on auction to repay the debt. The value of the collateral is much higher than the total of the bank loans and he settled the other civil disputes in relation to his liabilities in China.
In a statutory declaration dated 10 August 2017, the sponsor stated the following: prior to his marriage with the visa applicant, she explained to him what had taken place in relation to Mr [D]’s financial problems in China. He understood that the visa applicant had lost everything in liabilities and the banks had recovered what they could for the loans, ‘so everything should be finished for her’. All of these things took place because of Mr [D] and the visa applicant had oral negotiations with Mr [D] that he would be responsible for all liabilities.
The delegate recorded the following: on 14 August 2017 a Departmental officer contacted the [Named Court]. The officer spoke to two judges (Judge [E] and Judge [F]) who were responsible for enforcing court decisions against the visa applicant. According to the judges, the visa applicant still had outstanding personal liabilities under her name. They stated that the visa applicant’s personal assets had minimal values and are far less than enough to repay her liabilities. It was also found that the visa applicant’s name appeared on the “[Named List]” published on [a website] and her outstanding liabilities were provided as [a certain amount of money]: ([website link]).
The delegate found that based on the information obtained from credible third party sources (the local court in China), as at 14 August 2017, the applicant still had outstanding liabilities resulting from court decisions made against her since 2015.
On 8 August 2019, the Tribunal wrote to the sponsor and invited him to comment on or respond to information under s.359A of the Act. The sponsor was told the relevance and consequence of the information and invited to comment on or respond to the information. The information put to the sponsor related to the following:
·Information provided by the visa applicant and her son in an application for a protection visa made by the visa applicant’s son, in the Department of Immigration and Border Protection case file [number].
·Results from Google search web page address [July] 2017.
·An excerpt taken from the Civil Judgement of [Named] Court, Civil Judgement [in] 2015 Defendant [Named].
·[Details deleted] credit defaulters list. Welcome to browse [Named] Court Network – Tuesday [August 2017]. 2016 [Named] list. Entry [specified].
The sponsor’s migration agent responded to the Tribunal’s invitation to comment on or respond to information and stated that, they do not consider that clear particulars of the information had been provided to the sponsor. The Tribunal considered the sponsor’s migration’s agent response to the Tribunal’s letter of 8 August 2019, inviting comment or response to information. The Tribunal is of the view that clear particulars were put to the sponsor in the Tribunal’s letter of 8 August 2019. The Tribunal will proceed on that basis.
The sponsor told the Tribunal the following: the visa applicant was a housewife in China and took care of her children. He was unable to say when the visa applicant last worked in China. He didn’t know anything about the protection visa application that was lodged for the visa applicant’s son. He didn’t know anything about the [Company 1] or what the visa applicant may have signed and didn’t know anything about her acting as [Occupation 1]. He didn’t know about the visa applicant being named as defendant in a number of court cases in China. He didn’t know a great deal about her financial liabilities in China. The visa applicant told him that Mr [D] (her ex-husband) had problems with a project (in China) and this had nothing to do with her. Mr [D] had given the visa applicant his word that all or any of the money owing had nothing to do with her. The visa applicant knew there was money owed by Mr [D] who took all the responsibility and therefore it had nothing to do with the visa applicant. The visa applicant went on the internet to find out about the court cases but he didn’t know what she found. With regard to the information provided by Judge [E] and Judge [F], everything was done at the direction of her ex-husband. He didn’t know and is not interested about the visa applicant’s name appearing on the ‘[Named List] or that she had an outstanding debt of [a certain amount of money].
The visa applicant told the Tribunal the following: she worked in [Employer 1] in [Section 1] and [Section 2] in China. When she had children she stopped working. The information she provided on 18 July 2017 is correct. She did not provide any false information. The liabilities took place with her and Mr [D] before they divorced. In 2014 he verbally declared before a solicitor that all the liabilities were not related to her. Therefore she didn’t have liabilities. She believed that a statutory declaration made before a solicitor would be a legal document. As she is divorced (from Mr [D]) she does not think she would be able to obtain any documents from her ex-husband.
The [Company 1] was formed by Mr [D] and registered in her name. As a result she is being sued but she didn’t work in the company. Mr [D] used this company to obtain a loan. He told her that he took responsibility for all liabilities related to the company. She believed that the liabilities were taken care of by Mr [D]. With regard to the information provided by Judge [E] and Judge [F], all liabilities in 2014 and 2015, were under her name and Mr [D]’s name. Mr [D] told her that, the local Government would take their belongings and this would cover the liabilities. She didn’t know the amount of the loan/s or liabilities. She was just a housewife and helped Mr [D] because she was his wife. According to Mr [D], he borrowed money from 2003 or 2004 until 2014 and this became a court case in the local court. She only found out about the court case in 2014 when she wanted to return to China with her son. She asked Mr [D] and he stated that the liabilities are not related to her. She received a call from her mother about problems Mr [D] was having with his company which would reflect on the family. Therefore she helped her son apply for a protection visa.

Mr [D] told the Tribunal the following: [Company 1] was registered under the visa applicant’s name. He formed the company under the visa applicant’s name to ensure that the profit (from the company) remained with a family member. He handled all the business related to the company and the visa applicant didn’t know the details. He was being sued and because the company was registered under the visa applicant’s name she was being sued. The visa applicant didn’t know about the liabilities and he didn’t divulge fully to her about these matters. As his ex-wife, the visa applicant does not know a lot about his financial liabilities and his assets in the bank. He will work out a proper way to sort out his liabilities with the debtors and will work out a way to pay the debt.
The sponsor’s assistant told the Tribunal the following: the existence or extent of the debt is irrelevant to the review. The relevant matter is the visa applicant‘s knowledge of the liabilities. He drew the Tribunal’s attention to a case note on the Department’s case file relating to the interview of 18 July 2017 where it is recorded that the visa applicant stated that, ‘the sponsor didn’t have debt and she didn’t have any liabilities either. Her ex-husband has liabilities but she does not know how much (his liabilities are). They have a verbal agreement only about the debt.’ The visa applicant’s evidence and Mr [D]’s evidence is consistent in that they had an oral agreement and it was believed that their assets would extinguish the liabilities. The google search suggests that the liabilities may have been discharged. On the visa applicant’s evidence she may not have owed money after the seizure of assets and there may not have been any outstanding liabilities at the time of the Departmental interview. Even if there were liabilities at the time of the Departmental interview, the visa applicant had a personal guarantee that the liabilities would be paid. Therefore, the liabilities may have been paid, so the information she provided was not false and misleading. She had a personal guarantee from her ex-husband that the liabilities would be paid. The Tribunal must be completely satisfied and there is not enough evidence. It is unchallenged that Mr [D] took responsibility for the debt.
The information before the Tribunal is that the visa applicant was fully aware of the difficulties she and her ex-husband faced in China. As detailed in the delegate’s decision record the visa applicant’s son in the Protection visa application provided evidence that his parents were involved in economic crimes (in China). They borrowed money from banks and local loan companies (‘underworld’). ‘They have been intimidated when they were in China’. His family suffered and were threatened due to local underworld intervention. The local government and underworld work together. His mother found via the internet that a (court) case would be heard at the court [in] March 2014 at [a certain time]. The visa applicant in the Departmental interview related to the Protection visa application, stated that protection was sought for her son ‘because we got involved in family issues and social issues’ and they have life threatening issues in China. She went on to give details about a failed project her ex-husband was involved in and how the government and banks held him responsible and that the Chinese Government were trying to frame a case against them. The Tribunal notes that each segment of information provided on the application form dated 17 March 2014 is signed by the visa applicant on behalf of her son.
In a post Tribunal submission, the sponsor’s migration agent stated the following: the visa applicant’s evidence before the Department regarding the Protection visa application is the same, as in this matter, which is that she does not have any outstanding liabilities in China and the liabilities are Mr [D]’s.
Notwithstanding, the arguments put forward by the sponsor, the visa applicant, the sponsor’s assistant and the sponsor’s migration agent, the Tribunal does not accept that it is plausible for the visa applicant to be unaware of the liabilities owed by her and Mr [D] or that she was unaware of legal action taken against them in China. On the evidence, the visa applicant was fully aware that she had a company registered in her name in China and that she had signed off on a loan. She was aware of her liabilities with Mr [D] and also aware of a court case, but claims that she relied on Mr [D]’s oral agreement that he would take care of the liabilities and therefore concluded that she didn’t have liabilities. The Tribunal does not accept that, any oral agreement the visa applicant may have had with Mr [D] or any solicitor’s letter, dissolved her of liability. It has not been provided any independent evidence to support that her liabilities were or have been resolved. In fact, the evidence before the Tribunal, is that regardless of any oral agreement the visa applicant may have had with Mr [D], her liabilities in China remained unresolved as at [August] 2017.
The Tribunal accepts that the Google search document supports creditors’ action being taken against the visa applicant. It does not accept that, this action may or may not have resulted in the visa applicant not having any liabilities or that her liabilities were resolved. The evidence before the Tribunal is that, after the visa applicant’s interview with the Department on 18 July 2017 and after her statement of 11 August 2017, judges of the [Named Court] responsible for enforcing court decisions against the applicant stated [in] August 2017, that the visa applicant, continued to have outstanding personal liabilities and her personal assets had minimal values and were far less than enough to repay her liabilities.
Other information is that the visa applicant’s name appeared on the “[Named List] ” published on the local government’s website and her outstanding liabilities were stated as being [a certain amount of money]. The Tribunal is of the view that the visa applicant could not have been under any misunderstanding about her liabilities in China.
The Tribunal is of the view that the materiality in this case relates to the information the applicant provided in the Departmental interview of 18 July 2017 when she stated that she did not have any liabilities in China. The Tribunal reasonably suspects that the visa applicant in claiming that she did not have any outstanding liabilities in China provided information that is false or misleading in a material particular in relation to the application for the visa.
The Tribunal finds that the visa applicant’s denial about having liabilities in China raises questions about her credibility and other matters including the parties’ financial commitment to their relationship, her motive for entering in to a relationship with the sponsor, whether she entered the relationship with the sponsor in order to obtain a beneficial migration outcome so that she and her children remain in Australia and whether she entered the relationship to avoid paying back her liabilities in China and/or to avoid any further legal action against her. The Tribunal finds that the information the visa applicant provided that she did not have any liabilities in China to be false and misleading in a material particular, at the time it was given and was provided to assist the visa applicant meet c.309.211 and cl.309.221 of Schedule 2 to the Regulations.
The Tribunal finds that the information provided by the visa applicant that she did not have any liabilities to be false and misleading in a material particular, at the time it was given and was provided to assist the visa application and to meet Public Interest Criteria 4001 as it relates to cl.309.225 of Schedule 2 to the Regulations.
Therefore, the visa applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
The Tribunal considered the information before it about the parties’ relationship including the sponsor and visa applicant’s statements and the statements from third parties. The Tribunal accepts the parties’ relationship at face value.
An elderly friend of the visa applicant told the Tribunal the following: she met the visa applicant five years ago when she fell in the street and the visa applicant assisted her. The visa applicant comes to her home three times a week and helps her. She does the cleaning and takes her to appointments. She goes for a meal with the visa applicant and the sponsor. She has also visited the visa applicant’s mother in China. Previously she had a paid carer provide her with assistance but as the visa applicant helps her she no longer has the carer. She has a daughter who lives in [Suburb 4], but they don’t get along however the daughter visits her weekly bringing her rice and biscuits. While the Tribunal appreciates the assistance the visa applicant provides the witness may be of benefit to her, it is not satisfied that this assistance could not be provided to the witness by other means or services or a combination of both. The Tribunal is not satisfied that these are compelling or compassionate circumstances for the grant of the visa.
The sponsor told the Tribunal the following: his parents are deceased and he is an only child. He does not have a relationship with his ex-wife. He has two sons living in Australia. One of them cares little about the sponsor. The other son helped the sponsor in the past. However if he needed help in the future, it would be problematic because the son lived in a granny flat at his ex-wife home. He works five to six days a week and every cent goes to support his family, with the exception of their education which is paid for by the visa applicant’s sister. He has several medical conditions including [Medical Condition 1] and [Medical Condition 2] which was diagnosed in early 2018. He had a [operation] previously and all is resolved and he also had a [medical incident] in September 2018. The sponsor’s general practitioner also provided information of the sponsor requiring a [Medical Condition 1] operation. The Tribunal accepts the psychologists report prepared in support of the visa application. It encourages the sponsor to seek professional assistance during any times of anxiety and as suggested in the report to seek further psychological intervention. The sponsor told the Tribunal that his conditions do not stop him from working as he wants to provide for the family. He loves the visa applicant and her sons. The visa applicant and the children have lived in Australia for six years and he is determined that the children have a right to be in Australia to grow up with the Australian culture. If he lasts for another 20 years he want to see the visa applicant’s children reach their potential. He does not speak Chinese and if the visa applicant and the children had to return to China that would be the end of him. The visa applicant told him that she would care for him for the rest of his life and he wants someone to care for him and look after him. Notwithstanding the Tribunal’s concerns about the visa applicant’s motive for entering the relationship with the sponsor, the Tribunal accepts the parties’ relationship at face value. Having considered the sponsor’s evidence completely, it is satisfied that the sponsor’s reliance on the visa applicant, are compassionate circumstances that affect the interests of an Australian citizen, justifying the granting of the visas.
Therefore the requirements of PIC 4020(1) should be waived.
Other considerations
At one section in the delegate’s decision record the delegate stated that based on the information obtained from credible third party sources (the local court in China), ‘I find that as at 14 August 2016 (should read 14 August 2017) the applicant still had outstanding debts resulted from court decisions made against her since 2015’. It is evidence from the information in the delegate’s decision record that the date 14 August 2016 is a typographical error and should read 14 August 2017. The Tribunal has used the correct date of 14 August 2017, in its decision.
The sponsor listed numerous witnesses to provide oral statement to the Tribunal. The Tribunal was told that, the witnesses had provided written statements to the Tribunal and would provide information to the Tribunal about the parties’ relationship. As the witnesses had provided written statements about the parties’ relationship and were not providing any information relating to the PIC 4020 matter, the Tribunal did not proceed to take oral evidence from them. The visa applicant’s son was listed as a witness relating to his Protection visa application. The Tribunal did not proceed to take evidence from the visa applicant’s son. The Tribunal had before it the information he provided in the protection visa application. All of the information provided in the Protection visa application was signed off on by the visa applicant who appeared before the Tribunal in the current review.
The Tribunal hearing was assisted with the services of an interpreter in the Mandarin and English languages and an interpreter in the Cantonese and English languages. During the Tribunal hearing the services of the interpreters crossed over to ensure that the visa applicant, the visa applicant’s ex-husband and the elderly witness understood the information they were being told and the questions put to them by the Tribunal.
Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 309 visas.
DECISION
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the visa applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visa:
·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.
·The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the secondary visa applicants meet the following criteria for Subclass 309 (Spouse (Provisional)) visas:
·Public Interest Criterion 4020 for the purposes of cl.309.323 of Schedule 2 to the Regulations.
Helena Claringbold
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s.5 Interpretation
(1) In this Act, unless 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.
…

[2019] AATA 6656

12 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction