1804725 (Migration)

[2021] AATA 4091

1804725 (Migration) [2021] AATA 4091 (20 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804725

MEMBER:Margie Bourke

DATE:20 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

Statement made on 20 July 2021 at 4:35pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – false and misleading information in a material particular – criminal record – suspended term of imprisonment – waiver of requirement – compassionate or compelling circumstances – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225; Schedule 4, PIC 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 January 2018 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 June 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the visa applicant provided false and misleading information in a material particular in the information provided with the application for the visa.

3. The Tribunal has considered the information available to the Department at the time of its decision dated 24 January 2018. The Tribunal has considered the information available to it at the time of its decision in July 2021. The Tribunal is satisfied it can make a decision favourable to the visa applicant based on the information available to it without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.

4. In a submission from the review applicant’s representative, the Tribunal was invited to decide the matter without a hearing. The Tribunal is satisfied that it can accede to this invitation, although it is remitting the matter on the basis of the waiver in PIC 4020(4), and I make some findings which are not consistent with the submissions from the review applicant.

5. The following are the written reasons that the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 309.225 for the grant of the visa. Broadly speaking, this 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).

7. 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 material particular?

8. 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.

9. 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.

10. 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.

11. I have considered the information contained in the Department decision record dated 24 January 2018, a copy of which was provided to the Tribunal by the review applicant. I have also considered the submissions of the review applicant’s representative, and statements made by the visa applicant. I have considered the online application for the visa dated 1 June 2017, and note at page 18 the visa applicant recorded the answer ‘No’ to the question has the applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)? This I have considered that at part K question 36 in Form 80 in relation to Character the applicant recorded the answer ‘No’ to the question have you, or any other person included in this application ever been convicted of an offence in any country (including any conviction which is now removed from official records)?

12. I have considered the information in the Department’s decision record dated 24 January 2018. I have considered the translated order of the Republic of Croatia Municipal Court in [location] of the verdict of a single judge dated [in] April 2015. I am satisfied that the visa applicant was sentenced to an eight month term of imprisonment which was wholly suspended in relation to a road traffic offence in which another person was injured.

13. I have considered the statement of the visa applicant dated 10 June 2021 in which he states he misunderstood the question which asked whether he had ever been convicted of an offence. The visa applicant submits that at the time of the application both he and his partner (the review applicant) interpreted the questions in the application form and in the Form 80 to mean whether he had ever been incarcerated. I have considered the visa applicant’s submission and statement. I do not accept that the question asking whether the applicant had ever been convicted of an offence in any country could be interpreted as meaning whether a person had ever been incarcerated of an offence. I find this that the visa applicant withheld information about the offence for which he received the eight month term of imprisonment which was suspended, and in doing so provided false and misleading information as to his character and his claim that he had not been convicted of an offence in 6any country.

14. I am satisfied that the applicant has given or caused to be given to the Minister through his application to the Department information that is false and misleading in a material particular, namely his character in relation to a particular question that was in both the application for the visa and the Form 80. I am satisfied that the information that the visa applicant provided in the application form and in the Form 80 that he had not been convicted of an offence in any country, was false and misleading at the time it was given, and it was a relevant to the criteria that Minister may have to consider when making a decision on the application. I am satisfied the information provided by the visa applicant as to whether the visa applicant had been convicted of an offence was relevant to consideration by the Department as to whether the visa applicant passes the ‘character test’ which is a material particular of the grant of the visa in relation to the visa application.

15. For these reasons the Tribunal finds the applicant does not meet the requirements of PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

16. 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 reg 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.

17. 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.

18. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

19. There is no evidence before the Tribunal that there are compelling circumstances that affect the interests of Australia.

20. There are compassionate or compelling circumstances that affect the interests of an Australian citizen, namely the visa applicant’s partner [Ms A]. I am satisfied based on the movement records that the visa applicant’s partner departed Australia just over two months after the Department’s decision record to refuse the visa applicant’s application for the visa. I am satisfied that the visa applicant’s partner who is an Australian citizen has been residing with the visa applicant for over three years. I am satisfied based on the birth certificate provided that the visa applicant and the review applicant had a child together, born in Austria on [date].

21. I accept based on the information provided in the application form that the review applicant’s parents and siblings reside in Australia.

22. I accept that the evidence that the visa applicant’s partner departed Australia in March 2018 to live with the visa applicant, and the fact that they have a child born of their relationship, amount to compassionate or compelling circumstances that affect the interests of an Australian citizen.

23. Therefore the requirements of PIC 4020(1) should be waived.

    Has the applicant satisfied the identity requirements?

24. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  There is no evidence before the Tribunal that the applicant does not meet the identity requirements or that the identity documents provided by the applicant are not accepted by the Department.

25. Therefore, the Tribunal is satisfied that the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

26. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

27. There is no evidence before the Tribunal that the visa applicant or any member of his family unit has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

28. Therefore the Tribunal is satisfied the applicant meets PIC 4020(2B).

29. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 309.225.

    DECISION

30. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

    ·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

    Margie Bourke
    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.

    …