1807535 (Migration)

1807535 (Migration) [2021] AATA 3368 (12 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1807535
MEMBER:Helena Claringbold
DATE:12 August 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 12 August 2021 at 4:09 pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – misleading information in a previous visa application – false passport – different identity previously declared – compassionate or compelling circumstances – sponsor’s chronic medical issues – mental health conditions – emotional and financial hardship to the sponsor – residence in India for dual citizens – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 820.226; Schedule 4, Public Interest Criterion 4020; r 1.03
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 31 July 2017, [the] applicant, applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. The application was based on his spousal relationship with [the] sponsor.
On 2 March 2018, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4020 of Schedule 4 to the Migration Regulations 1994 (The Regulations). Therefore, the applicant did not meet cl.820.226 of Schedule 2 to the Regulations made under the Migration Act 1958 (the Act).
On 20 March 2018, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision brought by the visa applicant.
On 28 July 2021, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant confirmed at the beginning and the end of the Tribunal hearing that he had understood the interpreter clearly. The sponsor confirmed that she understood the interpreter clearly. The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and as a whole, all of the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file 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 PIC as required by cl 820.226 for the grant of the visa. If not, should the requirements of PIC 4020 be waived?
BACKGROUND ON THE EVIDENCE
The applicant was born in [year] in Jalandhar, India. His parents and [siblings] are deceased. He has a sister who lives in India and [specified relatives] living in Australia. The applicant declared one previous marriage to [Ms A]. The marriage began in 2007 and ended in divorce [in] April 2016. On 2 March 2018, the applicant was refused a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
The sponsor was born in [year] in [India]. Her parents and a [sibling] live in India. She has a [sibling] who lives in Australia. The sponsor declared one previous marriage to [a named person]. There are three sons from this relationship who were born in [respective years] who live in Australia. [In] October 2004, the sponsor entered Australia. [In] March 2008, she was granted Australian citizenship.
On 13 June 2015, the applicant and the sponsor (the parties) first met. [In] August 2016 the parties married and commenced cohabitation.
CONSIDERATION OF CLAIMS AND EVIDENCE
Public interest criterion 4020
The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.820.226 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).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compassionate or compelling circumstances 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.
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.
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 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(2AA).
Information provided in the delegate’s decision record is as follows. On 31 July 2017, the applicant applied for the partner visa. Prior to making the visa application [Ms A], the applicant’s former spouse, applied for a Regional Sponsored Migration Scheme (RSMS) visa. The applicant was included in the RSMS visa application as a dependent of [Ms A] and he was granted a Bridging visa C. The delegate considering the RSMS visa application found that the applicant provided false information and fraudulent documents in order to obtain the RSMS visa. Departmental records indicate that on 26 November 2015, the applicant was refused the RSMS visa. The refusal was based on the grounds that the applicant provided false and misleading information in relation to the RSMS visa application and therefore failed to meet PIC 4020(1) of Schedule 4 to the Regulations.
A ‘psychological assessment, compassionate and appealing circumstances on behalf of the parties to waive public interest criteria’ is dated 10 January 2018. The applicant provided the psychologist with the following information. He came to Australia as an overseas student in 1999 using a false passport. The applicant explains that at the time in the Punjab there were some critical criminal elements in his town that created problems for him and his family and were threatening them. He decided to leave by using a false passport.
The representative in his submission of July 2021, stated the following. There was no intention by the applicant to purposely deceive as such there is no element of fraud or deception. The applicant first arrived in Australia in April 2007. The applicant’s ex-wife lodged an application for [specified visa]. She did not disclose the applicant’s other name ‘[Alias A] ([DOB 1])’ in question 41 on Form 47ES which asks, ‘Other names your partner is or has been known by (including name at birth, previous married names, aliases)’. The delegate refused the visa application on 26 November 2015 for providing false and misleading information.
The applicant told the Tribunal the following: Prior to him entering Australia, his father spoke to an agent in India who provided the applicant with the false identity of [Alias A] with a different date of birth (to his own). His main aim was to leave India because of the political environment and he didn’t consider anything else. In 1999, he first entered Australia as [Alias A] with the different date of birth. The visa he entered Australia on was issued on the basis of him studying English. However, once in Australia he didn’t study English but lodged a protection visa application. The protection visa application was refused by the Department. On review of that decision, the Tribunal (differently constituted) affirmed the refusal of the protection visa. He applied to the Federal Court for review of the Tribunal’s decision and also sought ministerial intervention. In 2006, he departed Australia after signing papers at the airport. In April 2007 after marrying [Ms A], his former spouse, he returned to Australia under the identity of [the applicant’s name], which is his actual identity. When [Ms A] applied for the RSMS, the migration agent didn’t disclose that he had been known as [Alias A] and the RSMS was refused.
The evidence before the Tribunal is that on 31 July 2017, the applicant applied for the partner visa. Prior to this, on 26 November 2015, the applicant was refused the RSMS. The refusal was based on the grounds that the applicant provided false and misleading information in a material particular in relation to the RSMS visa application. As a result, the applicant did not meet 4020(1) of Schedule 4 to the Regulations.
Having considered the evidence individually and completely, the Tribunal is not satisfied that during the period starting three years before the application for the partner visa was made and ending when a decision to grant or refuse a visa, the applicant has not been refused a visa because of failure to satisfy the criteria in PIC 4020(1). As a result, the applicant does not meet the requirements of PIC 4020(2) to the Regulations.
At the time of the visa application, the applicant was not under 18 years. As a result, the applicant does not meet PIC 4020(2AA).
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 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.
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.
There are no claims and no evidence that there are compelling circumstances that affect the interests of Australia.
The applicant provided information in support of the parties’ being in a genuine partner relationship and other information seeking a waiver of PIC 4020 this included, but is not limited to the following:
In a letter dated [in] August 2017, Dr K provided the following information. He had seen the sponsor on the same date and she had been his patient for one year. She has a history of ‘OA and lumbar radiculopathy’ and has been treated for chronic back pain since 2009. She is on a disability pension payment and needs the full support of her husband. On a record note dated [in] August 2017, Dr K notes that the applicant accompanied the sponsor, ‘I think they have some visa issue not very clear what’s going on requesting more paperwork from me for his lawyer in Sydney’. Information relating to various tests undertaken by the sponsor and medication is also in these documents. In a letter of August 2019 Dr K stated the following: the sponsor suffers from a chronic pain syndrome and major depression. She underwent a procedure of facet joint denervation L for S1 by Dr T, pain specialist. It seems to have been unsuccessful, she has chronic debilitating back pain with what sounds like sciatica to her right lateral thigh stop as a result of the chronic pain she is also deeply depressed. Also, her partner has some visa issues which adds to their current problems.
The representative in his submission of August 2017 (in relation to a Schedule 3 waiver) and January 2018, provides a history of the parties’ relationship and stated the following. The parties’ relationship is accepted by their families. They have lived together since [August] 2016. They look after the children as well as their own responsibilities. They cannot stay away from each other even temporarily for emotional, financial and other reasons. The sponsor has stress and anxiety after the breakdown of her previous relationship with three children to maintain and poor health and suffering from chronic back pain since 2009. She struggled to come out of a bad state of mind and depressing circumstances with the help of the applicant. There would be a significant impact on the parties financially and emotionally if the applicant had to depart Australia. The sponsor would be depressed and socially isolated and withdrawn in the absence of the applicant. They don’t have any financial savings to meet all their essential amenities of life for a longer period. The sponsor’s Australian citizen son Mr S will stay unattended and won’t be able to complete his studies. There would be chances for him to be involved in other vices at his delicate age. The involvement of drugs is common to attract ‘youngsters’. It would be hard for the sponsor to join the applicant in India. It is in her best interest that he remains in Australia to care for her physical, financial and emotional needs.
A ‘psychological assessment, compassionate and appealing circumstances on behalf of the parties to waive public interest criteria’ is dated 10 January 2018. Mr K, psychologist stated that the parties referred themselves to him on 28 December 2017 and were accompanied by Mr G, the sponsor’s son from her first marriage. Mr K declared that most of report is based on two clinical interviews with the parties and the sponsor’s son on 28 December 2017 in Melbourne. During the consultation he was able to observe the behaviour of the sponsor and formulate hypotheses about her mental health problems, which assisted with diagnostic formulations. The parties and the sponsor’s son also provided information about their families, education and working lives in India and Australia. He provided information including the following. The parties are originally from India and the sponsor is an Australian citizen.
Mr K stated the following: The sponsor comes from a very close Punjabi family in India. Her parents live in India and she has [specified siblings]. She completed [grade] in India and had been working on her family’s farm prior to coming to Australia. In Australia she worked on farms fruit picking for a number of years. However, because of a lower back injury she stopped working and is on a new start allowance. Her son born in [year] is studying in Melbourne, doing a [specified course], her next son born in [year] is doing a [different course] at university, and her youngest son is in [grade]. She needs support with her sons especially her youngest son who is still at high school. The sponsor’s son told the psychologist that the applicant had taken over as his father when he moved in with them.
Mr K stated the following: The sponsor believes that her first husband subjected her and her sons to family violence and because of that she developed trauma symptoms. During this marriage she suffered from critical stress symptoms such as bad dreams, hypervigilance, depression insomnia and ongoing physical discomfort in her body, which she sustained during the times she was doing far more. She suffered chronic insomnia during the alleged family violence at the hands of her ex-husband. She finally separated from her ex-husband in 2006 and they divorced [in] September 2008. She felt lost before she met the applicant and had a number of medical conditions that she was suffering from, which are compelling and which aggravated her circumstances. Soon after meeting the applicant her life gained meaning. The applicant played a vital role in her psychological and physical well-being and is much stronger than she is and has become her driver, as she does not drive a car and support person on an emotional level. She is substantially depending on the applicant for her emotional, psychological and physical needs. She would suffer psychologically and physically if the applicant is forced to leave Australia. She suffers from chronic back pain since 2009 and has been diagnosed with osteoarthritis and lumbar radiculopathy. Because of these conditions she has problems with mobility, lifting, walking and moving objects around her house. She is using a range of medications for these conditions such as [specified medications]. She also suffers from irritable bowel and is using medication for that. She has a specialist appointment for her back problem in the coming months. She is prone to becoming anxious, depressed and lonely when she is on her own, especially when suffering from chronic loneliness when she shared a household with her first husband and for the period post separation until she met the applicant. She is fearful that the applicant will be asked to leave Australia which would cause her psychological hardship. She cannot do without the support in general as well as his affection and compassion for her and her sons need a father figure in their household. The applicant is meeting their psychological, emotional and physical needs which will be absent should he be forced to be separated from her. This is making her feel apprehensive about her wellbeing and security, especially given that she is suffering from a number of medical conditions. She would not be able to cope on her own having to support her children. She has not consulted a psychiatrist or psychologist for psychological problems in Australia prior to consulting the psychologist. The applicant helps the sponsor as follows: with shopping as she has mobility problems; takes her to doctors’ appointments and to Centrelink; supports her and meets her physical needs such as moving things around the house and lifting heavy objects; is a problem solver being an introvert she could not ask others to solve problems for her and has become dependent on the applicant solving skills; gives her emotional support when she struggles with her medical condition; because of her language difficulties assists her to talk to others and becomes her spokesperson when her sons are not available and the applicant is a father figure to her sons.

Mr K stated the following: Other than her children the sponsor does not have family in Australia who could assist her. The physical and emotional presence of the applicant provides the necessary context into which she is getting direct support from a loved one. She struggled in the past when married to her first husband and during the years after separation from him. She would suffer psychological and physical hardship should the applicant be asked to leave Australia which is a concern to her and her family doctor, which warrants a compassionate consideration based on compelling circumstances beyond her control. The psychologist suggested to the sponsor that she talk to her general practitioner to discuss the prospects of a mental health care plan as she needs some counselling for stress management given her struggles with her mental conditions. This should form part of her support which includes the essential role that the applicant plays in her well-being. The psychologist also recommended that the sponsor talk to her general practitioner about a review of her drug therapy, as she may need medication for depressed mood and anxiety.
The psychologist is of the opinion that the sponsor is vulnerable to stress which began when she was subjected to domestic violence by her previous husband and is now being confronted with the uncertain visa status of the applicant’s visa. He diagnosed the sponsor as suffering from generalised anxiety disorder with social anxiety features and persistent depressive disorder with somatic features. He suspects that she may have suffered from acute stress disorder, and also considers diagnosis of major depressive disorder.
Mr K stated the following: The applicant provided him with the following information. He came to Australia as an overseas student in 1999 using a false passport. The applicant explains that at the time in the Punjab there were some critical criminal elements in his town that created problems for him and his family and were threatening them. He decided to leave by using a false passport. He was married to his first wife [Ms A] and they had no children. Due to irreconcilable differences they divorced [in] April 2016 in Australia.
On 2 September 2020 Mr K stated the following, based on his assessment in 2017, he was of the opinion that the sponsor was highly stressed and depressed as the applicant who is a national from India, failed in his partner visa application based on character grounds. She reported that she was abandoned by her first husband who did not meet her psychological and emotional needs but subjected her to what appeared to have been family violence. She fears abandonment again should the applicant fail to remain with her in Australia and be her support person given her physical and mental health challenges. She was diagnosed with osteoarthritis and lumbar radiculopathy and was receiving medical treatment. She has to go for regular reviews with her specialists and has been assisted in this by the applicant. He diagnosed her with generalised anxiety disorder with social anxiety features as well as persistent depressive disorder. He was of the opinion that the sponsor was substantially dependent on the applicant for her emotional, physical and psychological needs. Moreover, given that she can no longer work she wanted the applicant to become the primary breadwinner in their household when he has given full working rights. He was of the opinion that the sponsor would suffer psychological hardship should the applicant depart Australia. She told him that her three sons are young adults and are living their own lives and cannot be there for her on a 24/7 basis. Another problem that she has, is with her cognitive functions. That is, she cannot pay attention to things, concentrate and has poor memory which are important functions when it comes to self-care. He provided counselling sessions on [dates in] August, [September], [October], [November] and [December] in 2019, on [specified dates in] January, [March], [April], and [July] 2020 with a review session [in] July 2020. Since March 2020, they have had telephone sessions because of COVID-19. The contents of the counselling focused on mindfulness breathing exercises such as in yoga and solution focused therapy. He reviewed the sponsor’s mental state [in] July 2020 and is of the opinion that she still needs ongoing treatment as she still worries about the fact that the applicant will be sent to India. This would leave her to her own devices and she would find this intolerable. In fact, she stated in the previous report, she feels hopeless and is substantially dependent on the applicant for her emotional, physical and psychological needs. In fact, given her chronic back pain problems, she depends on him to take her to medical specialists and GP. She told him that she feels despondent without the substantial support from the applicant. Her prognoses since 2018 has been negative and she is fearful that she would be separated from the applicant if he were to return to India. Moreover, the Indian borders are shut because of COVID-19 which is another concern for them.
In a letter dated November 2018, Dr H stated the following: the applicant is planning to accompany the sponsor on a trip to India. This is necessary for her as she is completely dependent on him physically, psychologically and emotionally. She suffers from chronic pain syndrome and major depression. Her pain is in her lumbar spine. She underwent a procedure of facet joint denervation L4S1 by a pain specialist. It seems to have been unsuccessful. She has chronic debilitating back pain with what sounds like sciatica to her right lateral thigh. As a result of the pain she is also deeply depressed and requires close supervision for her safety. I have referred her to a local neurosurgeon, but she wants to explore some other treatment options in India. I understand that for the applicant to travel it would require a different visa.
An email from the applicant contains the following
‘To Whom It May Concern. This letter has been written on behalf of both [the applicant] and [the sponsor], in an attempt to expedite the process of the partner visa of [the applicant]. As you may be aware, [the applicant] applied for the visa in March 2018. Considering the average time taken for an application of this sort to be processed, it would indicate the decision would be given around the end of 2019. [The applicant’s] wife, [named], has been going through a lot of suffering both physically and mentally and needs urgent treatment. Unable to mitigate recovery from numerous treatments in Australia, it has been recommended that she travel to India where her injuries can be properly treated. Her back pains have impacted her life in a way that has negatively affected her mental state, which has caused her to fall into a state of depression. With the constant worry of her husband’s future in Australia and the overall support she would lose if he is unable to preserve his residency in this country, further causing decline to her health. For [the applicant] it has been a long ongoing struggle both financially and mentally and the effects of his journey have distressed [the sponsor] quite considerably. [The sponsor] has to go to India to get the critical treatment that she is in urgent need of, however, she is incapable to do that without the support and assistance from her husband, [name variant]. Travelling long distance abroad is not in the capabilities of someone with such unfit physicality. In hopes of advancing and facilitating the process of [the applicant’s] visa, we write this letter with support from both [the sponsor’s] GP and psychologist, highlighting the importance of treatment as well as the need for her husband to accompany her. Please assist us by allowing us to receive the decision of the application as soon as possible so [the sponsor] can get her quality of life back. Psychologist report and letter of support from GP has been attached below for your consideration. Best regards.’
[In] March 2020, Dr F neurosurgeon stated the following he saw the sponsor on the same day she has proceeded to both MRI and bone scan. Her bone scan confirms right sacroiliac joint uptake, consistent with arthritis. She also has disco vertebral disease centred at L4-L5 and L5-S1. This looks more eccentric to the left but there may be some extrinsic compression of her right S1 route. She has a permanent problem which will not improve. He has arranged right sacroiliac joint injections and right S1 nerve injections. The role of surgery is depreciated at this point. He hopes that the object injections will give her some long-standing relief and would be happy to see her as requested. In a letter addressed to Dr H he further stated her general health is reasonable, that her issue is one of back and right lower limb pain. She has seen Dr T whom I understand has performed some facet joint denervation. Unfortunately, she remains in significant discomfort and her pain is affecting most aspects of her daily life. In November 2020 Dr F stated the following. He saw the sponsor and the applicant on the same day. Unfortunately, the sponsor’s right lower limb pain has recurred. She did get some benefit from a combination of right S1 Perry injections/write Sec Alec joint injections. This relief lasted for a period of several months, but she feels like she is back to where she started. It is clear that he has suggested her further injections for her. Her medication regime is reasonable.
The representative in his submission of July 2021, provided information including the following. The applicant has been in Australia for more than 14 years and has not been unlawful for any period of time. It would be unfair if he had to depart Australia. There has been considerable delay since imposing PIC 4020 and further delay in processing the visa application (that) justifies (the) waiver. The parties’ relationship progressed rapidly after they met in June 2015. They have lived together continuously in a committed relationship since June 2016. They are significantly committed to their relationship. There is no evidence to suggest that either party regards this relationship as anything other than long term. The nature of their commitment to each other is entirely consistent with a spousal relationship. They have a mutual commitment to a shared life as husband and wife to the exclusion of all others and their relationship is genuine and continuing. They live together and therefore do not live separately and apart on a permanent basis. The degree of companionship and emotional support for each other is readily apparent. Their spousal relationship is completely based on their true love and respect for each other
The representative continued and stated the following. The applicant has given strong emotional and financial support to the sponsor, particularly when she went through a very difficult time with her health. She has suffered chronic back pain since 2009 which is worsening. She cannot do regular chores. She is unable to work and receives a disability pension. The sponsor considers the applicant to be a devoted husband who has always provided her emotional, household, and financial support. Should the applicant’s visa be refused, she will face a combination of hardships. It is hard for them to be separated and she supports the grant of a partner visa. They would suffer emotional and financial hardships if separated from each other for an extended period of time. The sponsor would face financial challenges if she relocated to India for three years during the mandatory exclusion period of visa applicant. The parties are concerned about the prospect of resettling and assimilating socially and obtaining employment (in India). The sponsor’s children are living in Australia and relocating to India would impact financially as a result of the cost of her visiting Australia from India. If the sponsor remains in Australia, she will not be in a position to pay for her present accommodation, utility bills, insurances, medicine charges etc. She is relying upon the applicant for financial support during the mandatory exclusion period. The sponsor is dependent upon the applicant for financial and emotional support and this dependence is likely to increase over the coming years and continued separation would be a significant stressor for them.
The representative continued and stated the following: Given the possibility of a three-year exclusion period the sponsor would need to live with the applicant in India for an extended period. They would have nowhere to stay and he would need to accommodate the sponsor in very difficult circumstances. He would find it very difficult to obtain employment. However, the sponsor could not stay in India for an extended period because she is an Australian citizen. A short-term tourist visa can be granted to a foreigner who does not have a residence or occupation in India and whose sole objective of visiting India is recreation, sightseeing etc. The applicant is being punished for an application lodged by his ex-wife on 20 May 2011 and decided on 26 November 2015, which now significantly impacts upon him. PIC 4020(1) is not intended as a ‘punishment’. There are important policy considerations behind PIC 4020 which are designed to promote the integrity of the visa assessment process. The representative went on to provide information on Departmental policy in the Procedures Advice Manual (PAM3).
The representative continued and stated the following: It is evident that there are compassionate or compelling circumstances that affect the interests of an Australian citizen sponsor. The applicant seeks forgiveness for his carelessness on this matter. He apologises if any misunderstanding and inconvenience occurred. The applicant asserts that he has not been convicted of any criminal offences in Australia.
The representative continued and stated the following: If the requirement in PIC 4020(1) is not waived the current partner visa will be refused. The applicant and sponsor can reapply however any application will be affected by the three-year restriction in PIC 4020(2). Public Interest Criterion 4020(2) provides that if a visa has been refused under PIC 4020(1) within three years of an application, a visa may be again refused under PIC 4020(2). For practical purposes, this means the applicant and sponsor will need to delay making any further application to avoid being adversely affected by PIC 4020(2). This is likely to result in further significant delay. The applicant and sponsor will remain separated for an extended period. The visa applicant’s emotional health and his finances have been detrimentally impacted and this will be exacerbated by further delay and separation.
The representative continued and stated the following: The sponsor and her children are Australian citizens, who will be affected by the decision on the application of visa applicant. The visa applicant cannot relocate to India without significant hardship. He would find it extremely difficult to obtain employment in India at the age of [age] years for his survival. The visa applicant states that every time he travels to India, it costs approximately $2000 in airfares for him only. Now, he has his wife and a son, who lives with him on a full-time basis and is wholly reliant on his financial support. The applicant has found it very difficult to reconcile how he might attempt to reunite and continue to care if he had to depart Australia. The visa applicant’s long-term separation from his wife/ sponsor, the impact of that separation and his inability to live in India - are sufficient to demonstrate that there are compassionate or compelling circumstances affecting the interests of an Australian citizen. The applicant has provided medical reports regarding the health of his wife who was found to have ill health. The applicant provided reports advising her psychotic state of mind. She needs supervision and emotional support. The applicant gave evidence that the sponsor needs significant support in all aspects of her life and cannot care for herself and there are no other family members in Australia who can provide the high level of care and support needed. The representative goes on to draw the Tribunal’s attention to previous decisions made by the Tribunal.
Third party statutory declarations dated 2017, give the following information. Mr M, the sponsor’s son writes that the applicant has been supportive of the sponsor. She tells him over the telephone how easy it has been having the applicant around. He takes her to the doctor and gets her medication. This was something that Mr M had to do prior to the parties’ marriage. This was difficult as he lives away from the sponsor and because of university. He fells less stressed knowing that the sponsor has someone they can trust. Mr MSB had known the applicant for 11 years and the sponsor for seven years. The parties are always together. The sponsor struggles with back problems and the applicant takes her to appointments. Mr SS stated that the parties had been living together for about a year. The applicant helps the sponsor by taking her to doctor appointments and getting her medication. Photographic evidence depicts the parties together and with each other at different locations.
On 24 March 2021, the applicant wrote to the Tribunal seeking priority in his review. He stated the following. He first appealed to the AAT in 2018, where he was given an estimated waiting time of two years, but it has been extended to over three years with very little communication and progress about his residency status. During the years, his requests to travel back to India were denied preventing him seeing his family for the past five years. Having come from a family of [number] members, He endured the pain of being absent during several deaths. He lost his father, his mother, [and specified siblings] who all died due to complex health problems in India. He was unable to see them, unable to mourn properly, unable to say a proper goodbye. Seeing multiple members of his family pass takes a toll on his mental health, this has led to sleepless nights and not being able to focus throughout the day. The depression and anxiety prevented him from living a normal life, being unable to properly work and affecting his overall motivation. There are many affairs unresolved in India, for him as the eldest son. His [specified relative] is the only person remaining in the family home. She experienced the passing of her husband. Her mental health declined and pushed her towards suicidal thoughts. She is unable to handle the pressure and requires assistance in managing the household. The priority is to restore her mental health, travelling to India will allow him to take her to health professionals to assist in recovery. The extended wait has also impacted the sponsor as his distress has influenced her mental health. The sponsor, who suffers from severe back pain is dependent on him for living. He supports her by providing physical care, managing her specialist appointments and keeping the household affairs in order. If the decision cannot be reached quickly, he is requesting reconsideration to the travel conditions on his visa with respect to his current circumstances, allowing him to take care of his family both in India and Australia which he has a responsibility to do.
The Tribunal discussed with the applicant the information in the delegate’s decision record that on 31 July 2017, the applicant applied for the partner visa. Prior to this [Ms A], the applicant’s former spouse, applied for an RSMS visa. The applicant was included as a dependent applicant of [Ms A] in this application and was granted a Bridging visa C. The delegate considering the RSMS visa application found that the applicant provided false information and fraudulent documents in order to obtain the RSMS visa. Departmental records indicate that on 26 November 2015, the applicant was refused the RSMS visa under PIC 4020, and specifically PIC 4020(1) of Schedule 4 to the Regulations. The refusal was based on the grounds that the applicant provided fraudulent identity documents in relation to the application for that visa. The Tribunal advised the applicant the reasons for the refusal for the RSMS visa may outweigh the reasons he provided to justify the grant of the visa.

The applicant told the Tribunal the following: The sponsor’s family in Australia consists of her [specified relatives] who live in Melbourne. Her sons, G and M and SP, also live in Melbourne. G has finished his study and is working in [an occupation]. M is studying [a course] and also works with G. SP is studying [another course]. They support themselves financially through work and Centrelink benefits. Her parents and a [specified sibling]r live in India. The applicant has [specified relatives] living in Victoria. His parents and [a sibling] are deceased. He has a [specified relatives] living in India. He owns a home in India which has come down from his parents and this is where his [specified relative] lives. In about 2017, the sponsor travelled to India to attend his mother’s funeral and stayed one-and-a half months, he later changed this to two to three weeks. She lived in his home and her parents’ home with whom she shares a good relationship.
The applicant told the Tribunal the following: The sponsor has not worked for eight or nine years. She has had no income other than Centrelink payments previously $600 but now $490 fortnightly. She has had no other income in that time. In Australia the applicant has worked as a farm hand carrying out various duties [listed]. Sometimes he can’t work because of weather conditions. However, when working he usually earns about $600 to $700 weekly. His salary has always been the same and he has no other income.
The Tribunal asked the applicant about credit deposit transactions for 2017 detailed on the parties’ joint bank statements and where this money had come from. The transaction are as follows: 27 January $8,000 cheque; 6 February $208,000 transfer from xx3857; 17 February $3,400 cash and chq; 20 March $5,827 cheque; 23 March $15,000 cheque, 5 April $1,600 cash; 6 April $800 cash; 19 April $11,500 cheque; 24 April $1,000 cash; 12 May $7,071.85 cheque; 19 June $3,000 cash. As detailed on the bank statements the total credits into the joint bank account were $265,334.48.
The applicant responded and stated the following: sometimes friends deposit money into the bank account as they borrow $5,000 to $15,000 from each other. Other times when he can’t meet the mortgage payments [a named person] deposits money and when the applicant has money, he pays him back. The farmers also give him money to pay the farm hands.
The Tribunal asked the applicant about debit transactions for 2017 detailed on the parties’ joint bank account as follows: 6 February $54,600 noted as ‘[the sponsor]’;11 February $50,000 noted as ‘[notation]; 16 February $50,000 noted as ‘[the same notation]’.
The applicant responded and stated the following: The $54,600 transferred to the sponsor related to the house they were building at that time. The money came from his work of 20 years and the sponsor had been working and had money and she also received money from overseas. The transfer noted as ‘[same notation]’ could be transfers to the builder of their house.
The Tribunal asked the applicant about a credit deposit transaction for 2017 detailed on the parties’ joint bank account as follows: 17 July $9,000 cash. The applicant told the Tribunal that he couldn’t remember about this transaction.
The Tribunal put information to the applicant under s.359AA of the Act. The applicant was told the relevance and consequence of the information. He was invited to comment or respond to the information and told he could seek additional time to do so. The applicant responded at the Tribunal hearing. The information put to the applicant is as follows:
Information on the Department’s file is that on 21 November 2017, the applicant applied for a Bridging visa C. He stated that he had been living in Australia with the support of the sponsor and friends. His friends could not provide him any further financial assistance. He was in financial hardship and the sponsor’s income was insufficient to pay the bills, food and household expenses. He was in severe need of money to pay utility bills, grocery and household expenses and he needed work rights to meet his financial needs.
He was told that this information is inconsistent with the information provided in the parties’ joint bank statements for 2017, which recorded significant amounts of money being deposited into the parties’ bank account between January and May 2017 there were credits into the joint bank account of approximately $265,334.48 and in July 2017, $9,000 was deposited into the parties joint bank account.
The applicant asked whether the $265,334.48 was one deposit or made up of different deposits and he was confused about this amount. The Tribunal again explained in detail the individual deposits to the applicant. He stated that he was confused about the $265,334.48. He declared that it may be related to when the sponsor’s house burnt down and she may have received a transfer from the insurance (company). He then stated that $208,000 came from the insurance (company).
In a post hearing submission, the applicant provided the Tribunal with a letter which stated that it was written on behalf of the applicant, however the letter is signed by the applicant. The letter provided the following information. The applicant felt there were several points during the Tribunal hearing that were not handled well. The interpreter was struggling to properly communicate and articulate the answers to questions. Questions were asked about several deposit transactions into the applicant’s bank account. The interpreter did not explain the source of the deposits. Several of the deposits were from farm work, which varies in amount depending on the season and the amount of work available. Salaries are often paid infrequently, even after two months rather than fortnightly. Some amounts were borrowed from friends as it was during the construction of the family residence. The deposit of $200,000 was an insurance payment for one of the previous properties that was damaged by fire. The applicant told the Tribunal that he understood the interpreter clearly. The Tribunal’s understanding of the source of the deposits into the applicant’s bank account was fully understood by the Tribunal at the Tribunal hearing and that understanding is consistent with the information provided in the post hearing letter.
The applicant stated that the migration agent who assisted the RSMS visa application didn’t declare that he had been known as [Alias A] and ‘ruined my case’ and he had told the migration agent everything. In a post hearing submission, the applicant provided the following information. A communication error occurred when questions were asked about the (applicant’s) ‘previous name’. The applicant tried to explain several times, that it had been addressed and investigated by the Department. The documents were provided with no intention of committing fraud. The previous migration agent advised that there was no section in the document that asked about previous names, so an email was to be sent (to the Department) addressing this. However, this email was not sent by the migration agent. The applicant should not be held responsible as he fulfilled his role and responsibility in notifying the agent and it is unfair to punish him for the agent’s negligence.
The Tribunal discussed with the applicant the statement made by his representative that the sponsor could not stay in India for an extended period because she is an Australian citizen. A short-term tourist visa can be granted to a foreigner who does not have a residence or occupation in India and whose sole objective of visiting India is recreation, sightseeing. It told the applicant that information before the Tribunal is as follows:
·Based on the recommendation of the High-Level committee on Indian Diaspora, the Government of India decided to grant Overseas Citizenship of India (OCI) commonly known as ‘dual citizenship’. Persons of Indian Origin (PIOs) of certain category as has been specified in the Brochure who migrated from India and acquired citizenship of a foreign country other than Pakistan and Bangladesh, are eligible for grant of OCI as long as their home countries allow dual citizenship in some form or the other under their local laws.

·Registered OCIs shall be entitled to following benefits:

(i) Multiple entry, multi-purpose life-long visa to visit India;
(ii) Exemption from reporting to Police authorities for any length of stay in India; and
(iii) Parity with NRIs in financial, economic and educational fields except in the acquisition of agricultural or plantation properties.

·Any further benefits to OCIs will be notified by the Ministry of Overseas Indian Affairs (MOIA) under s 7B (1) of the Citizenship Act, 1955; [1]and
·The OCI card is popular among Foreigners of Indian Origin and spouses of foreign origin of Indian citizens, as it aids in hassle-free entry and unlimited stay in India, as well as a number of other benefits not available to other foreigners.[2]
[1] Dual Nationality: The Constitution of India does not allow holding Indian citizenship and citizenship of a foreign country simultaneously. Based on the recommendation of the High-Level committee on Indian Diaspora, the Government of India decided to grant Overseas Citizenship of India (OCI) commonly known as ‘dual citizenship’. Persons of Indian Origin (PIOs) The OCI card is popular among Foreigners of Indian Origin OCI Cardholders: Rules For Re-Issue Of Overseas Citizen of India Cards Simplified (ndtv.com)
The applicant responded and stated, yes but, the sponsor would have to apply for this. She can’t go to India as they couldn’t afford the injections she needs and he does not have friends in India.
The Tribunal discussed with the applicant an email provided to the Tribunal which states:
‘To Whom It May Concern’ ‘This letter has been written on behalf of both [the applicant] and [the sponsor], in an attempt to expedite the process of the partner visa of [the applicant]. As you may be aware, [the applicant] applied for the visa in March 2018. Considering the average time taken for an application of this sort to be processed, it would indicate the decision would be given around the end of 2019. [The applicant’s] wife, [name], has been going through a lot of suffering both physically and mentally and needs urgent treatment. Unable to mitigate recovery from numerous treatments in Australia, it has been recommended that she travel to India where her injuries can be properly treated. Her back pains have impacted her life in a way that has negatively affected her mental state, which has caused her to fall into a state of depression. With the constant worry of her husband's future in Australia and the overall support she would lose if he is unable to preserve his residency in this country, further causing decline to her health. For [the applicant] it has been a long ongoing struggle both financially and mentally and the effects of his journey have distressed [the sponsor] quite considerably. [The sponsor] has to go to India to get the critical treatment that she is in urgent need of, however, she is incapable to do that without the support and assistance from her husband, [the applicant variant name]. Travelling long distance abroad is not in the capabilities of someone with such unfit physicality. In hopes of advancing and facilitating the process of [the applicant’s] visa, we write this letter with support from both [the sponsor’s] GP and psychologist, highlighting the importance of treatment as well as the need for her husband to accompany her. Please assist us by allowing us to receive the decision of the application as soon as possible so [the sponsor] can get her quality of life back. Psychologist report and letter of support from GP has been attached below for your consideration. Best regards’
The Tribunal told the applicant that other than the email address there is no signature on the email and no details as to who the content of the email is from. The applicant was unable to assist the Tribunal.
The sponsor told the Tribunal the following: She has back problems an does not drive and does not have good English. The applicant does everything and she can’t live a minute without him.
The representative stated that he had checked the parties joint bank statements and other than the $208,000, the remainder of the deposits were made by cheque and related to the farmer’s money to the applicant to pay the farm hands. He said that the applicant had lived in Australia for 14 years and has adopted the culture of Australia and it would be difficult for him to leave. The applicant apologies for what he has done.
Various types of information have been provided about the applicant having lived in Australia for 14 years and having settled in Australia and the difficulty he would experience living in India. These include reasons in post hearing submission which stated that during the lengthy time it has taken to process the visa application the passing of the applicant’s parents and [siblings] have played a very serious role in his mental health. The applicant has been struggling with his residency status for over 20 years, without any positive outcomes. It promotes stress which has now turned to depression. The interests of the applicant are not relevant when considering whether a waiver should apply. A waiver must apply to compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen.
The information provided about the sponsor’s previous marriage is that she believes she suffered family violence and there are ongoing psychological issues for her resulting from this. The sponsor on her evidence separated from her previous partner in 2006, which is approximately 15 years ago. The Tribunal understands that this does not necessarily diminish the ongoing effect of such an experience. It encourages the sponsor to seek assistance from her health professionals for support to ease any anguish she may feel as a result of this experience. The Tribunal is not satisfied these are compassionate or compelling circumstances that justify the grant of the visa.
The information before the Tribunal about the sponsor’s family in Australia is that her sons are living in Melbourne independently of her and the applicant and support themselves either through work or a combination of work, study and government benefits. It also appears that one of her sons has deposited various amounts of money into the parties’ joint bank account. The sponsor’s [sibling] is also living in Melbourne with [their family]. The Tribunal understands that the sponsor is living a distance away from her family in Australia. However, she may be able to employ other services to assist in her activities of daily living. The Tribunal is not satisfied that these circumstances are compassionate or compelling circumstances that justify the grant of the visa.
The Tribunal considered the parties’ financial circumstances including the bank statements the applicant provided the Tribunal up to 2021. It pondered the claims made that they would suffer significant financial hardship in meeting their essential requirements should the applicant be offshore. It considered the information that the sponsor no longer worked and wanted the applicant to become the primary breadwinner in the household and was wholly dependent on the applicant financially. It thought about the applicant’s willingness to previously represent that the parties were in financial hardship when he applied for the Bridging C visa. Yet, months prior to these claims being made over $274,000 was deposited into the parties’ joint bank account. The applicant provided inconsistent evidence to the Tribunal about this money. On one hand, he claimed that the money was provided to him by the farmers to pay the farm hands and other monies were borrowings from friends. On the other hand, at the Tribunal hearing he claimed that $208,000 of the money related to an insurance payment resulting from the sponsor’s house fire, with $154,000 being paid against a home the parties were building. In a post hearing submission, he declared the insurance payment was $200,000. While the Tribunal may accept that the applicant being offshore would disturb the parties’ finances and may present the parties with some financial challenges, it is not satisfied that it can rely on the information being provided about the parties financial circumstances and is not satisfied these are compassionate or compelling circumstances that justify the grant of the visa.
The Tribunal considered the information about the sponsor and her physical and psychological health. It accepts that she has the conditions and symptoms as described. It understands that should the applicant depart Australia she may be faced with challenges including the need to put in place strategies to aid her 24-hour activities of daily living including her cognitive function, attention, concentrate and memory function to ensure that she self-cares. She may need to engage other strategies for her continued wellbeing and security and sourcing a driver to assist her attend medical appointments. The Tribunal is of the view that the applicant can continue to support the sponsor and continue his role in her well-being. The Tribunal’s opinion is that the applicant can continue to assist the sponsor problem solve and support her emotionally through her medical conditions and that she can continue to depend on him. While it accepts that the sponsor’s sons may consider the applicant a father figure, it encourages them to seek his counsel during any separation. The Tribunal notes that the sponsor’s sons and [a sibling] live in Melbourne independently of the parties. The Tribunal encourages the sponsor to continue to seek the assistance of her health professionals during any separation from the applicant. The Tribunal is aware of a wide range of medical, government and community support available to the sponsor to assist her physically, psychologically and with any language difficulties she may experience, when her sons are not available and while the applicant may be offshore. It considered the impact of the circumstances claimed by the parties individually and completely and is not satisfied, in this case, that these circumstances present compassionate or compelling circumstances that justify the grant of the visa.
The Tribunal considered the arguments about why the sponsor cannot live in India including that as an Australian citizen she cannot live there for a lengthy period of time and the injections she needs would be cost prohibitive. As discussed with the applicant in the Tribunal hearing, should the sponsor decide to live in India there are options for her including that she can apply for an Overseas Citizenship of India, which would provide her with unlimited stay as well as a number of other benefits. The Tribunal has not been provided any independent information about the cost of injections for the sponsor in India. The other evidence is that the sponsor intended to travel to India to seek medical treatment. Ultimately, the sponsor is not required to depart Australia. Rather, the applicant may be required to depart Australia should there not be compassionate or compelling circumstances that justify the grant of the visa. On the applicant’s evidence, he has a home in India and when the sponsor travelled to pay respects on the death of his mother, she lived between his home and her parents’ home whom she has a close relationship with. It is noted that also on the applicant’s evidence the sponsor travelled to India and returned to Australia without any support person travelling with her. Eventually, it is up to the parties to decide where they live. The Tribunal is not satisfied that these are compassionate or compelling circumstances that justify the grant of the visa.

The parties met in June 2015 and married in August 2016. A married relationship is the basic requirement for a partner visa application. The Tribunal considered the length of the parties’ relationship and the support claimed to be given to the Australian citizen sponsor. It pondered the claims that the parties are significantly committed to their relationship; that they share a life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they live together and do not live separately and apart on a permanent basis. It accepts that the parties are spousal partners. The Tribunal considered the information provided in the post hearing submission which is that it’s not something that can be taken lightly as the future with the sponsor and the children are always in question. The Tribunal is cognisant of the outcome should there not be compassionate or compelling circumstances justifying the grant of the visa. When it balanced the full circumstances of the parties’ relationship, against the applicant’s immigration history including on his evidence that he first entered Australia with a fake identity in the name of [Alias A] to lodge a protection visa in Australia, his protection claims were not accepted and the visa was refused. He then continued to manipulate Australia’s immigration system before departing Australia. As discussed with the applicant at the Tribunal hearing, as a result of being refused the protection visa, the applicant would have been prevented from lodging any other visa application in Australia. He then re-entered Australia using the identity of [the applicant’s name], which he claims is his real identity, in the Tribunal’s view further manipulating Australia’s laws. If as he claimed, his real identity is [the applicant’s name] it is puzzling why he didn’t declare this identity when he applied for the visa to first enter Australia and when he applied for the protection visa. The applicant’s claim that he was forced to leave India on a fake passport because of criminal activity in his town are not supported by any independent evidence. The argument that the applicant didn’t intend to deceive and there was no intention of committing fraud and his previous migration agent did not disclose his other name because it was not asked for is questionable. It is also inconsistent with the information given by the current representative which is that the previous migration agent did not disclose the applicant’s other name ‘[Alias A] ([DOB 1])’ in question 41 on Form 47ES. This information clearly demonstrates that question 41 sought disclosure of the applicant’s other names. The Tribunal is of the view that it is the applicant’s responsibility to ensure information in any visa application is declared and that it is true and correct. The Tribunal does not consider the applicant to be credible and on balance is not satisfied that either the length of the parties’ relationship or the support he gives the sponsor are either compassionate or compelling circumstances, in this case, that justify the grant of the visa.
Other considerations
Ina post hearing submission the applicant provided the Tribunal with a letter which stated that it was written on behalf of the applicant, however the letter is signed by the applicant. The letter provided the following information. The applicant felt there were several points during the Tribunal hearing that were not handled well. The interpreter was struggling to properly communicate and articulate the answers to questions. The applicant draws the Tribunal to various matters and these are recorded in this decision record. The Tribunal asked the applicant at the beginning and at the end of the Tribunal hearing if he understood the interpreter clearly and he stated that he did. The applicant provided spontaneous and relevant answers to the Tribunal questions. In addition, he has further clarified these matters in the letter he provided after the Tribunal hearing. The Tribunal is satisfied that the applicant has been given a fair and just opportunity to present argument and evidence in relation to the review.
The representative drew the Tribunal’s attention to previous Tribunal and decisions and to the PAM3. The Tribunal is not bound by the previous Tribunal decisions or PAM3. It is bound by court determinations and is not precluded in any way in considering policy currently in force providing it does not contradict the law. Ultimately, the Tribunal’s responsibility is to consider the circumstances of each case before it and to make the correct or preferable decision on the evidence. The Tribunal has considered all the information before it and has progressively come to its decision having had regard to the individual and complete circumstances of this case as detailed above.
The Tribunal considered the evidence individually and completely. It is not satisfied that there are compassionate or compelling circumstances, in this case, that justify the grant of the visa.
For the above reasons, the Tribunal is not satisfied that the requirements should be waived.
Therefore, the applicant does not meet PIC 4020(2) of Schedule 4 to the Regulations.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.820.226 of Schedule 2 to the Regulations.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
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.
…

[2021] AATA 3368

12 August 2021

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Immigration

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Statutory Interpretation

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