1808089 (Migration)

1808089 (Migration) [2022] AATA 2861 (9 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1808089

MEMBER:Helena Claringbold
DATE:9 July 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·public interest criterion 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations; and
·cl 820.211(2)(a) of Schedule 2 to the Regulations; and
·cl 820.221(1)(a) of Schedule 2 to the Regulations; and
·reg 2.03A.

Statement made on 09 July 2022 at 9:22am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing partner relationship – bogus document – divorce certificate – de facto relationship – joint financial commitments – family and friends recognise the relationship – applicant still legally married at date of previous student application – paternity of the children – compassionate circumstances – decision under review remitted
LEGISLATION
Marriage Act 1961
Migration Act 1958, ss 5, 359
Migration Regulations 1994, Schedule 2 cls 2 820.211, 820.221, 820.226; Schedule 4 4020; rr 1.03, 1.09, 2.03
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
He v MIBP [2017] FCAFC 206
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 29 September 2015, [the] applicant, applied for Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas. The application was based on his spousal relationship with [name], the sponsor.
On 6 March 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor (collectively referred to as (the parties) were genuine spouses. Therefore, the applicant did not meet cl. 820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) made under the Migration Act 1958 (the Act) (Cth). In addition, the delegate found that the applicant did not meet public interest criterion (PIC) 4020(1). As a result, the applicant did not meet cl. 820.226 of Schedule 2 to the Regulations.
On 24 March 2018, the applicant provided the Tribunal with a copy of the delegate’s decision. This is a review of the delegate’s decision brought by the applicant.
On 3 June 2021, the Tribunal wrote to the applicant and invited him to an in-person hearing scheduled for 17 August 2021. Due to NSW Government restrictions that were in force at the time, related to the COVID-19 pandemic, the Tribunal was prevented from conducting the hearing. On 3 August 2021, the Tribunal notified the applicant that the hearing had been cancelled until a new date became available.
On 25 March 2022, the Tribunal wrote to the applicant again and invited him to an in-person hearing scheduled for 25 May 2022. The applicant was advised the following (emphasis removed):
Please provide all documents you intend to rely on to support your case by 18 May 2022. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.
Statements written in Australia by the applicant and the sponsor and third-party statements are to be provided as statutory declarations. The statutory declarations must be correctly witnessed and accompanied with identification documents for the authors, for example a certified copy of the person passport or birth certificate.
Statutory declarations and third-party statements written by persons who do not write and understand the English language, are to be written in the persons’ own language.
Documents not written in English must be translated into English by a translator with a current ‘Translator’ level certification and accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI) who is independent and not involved in or associated with the case under review. This includes any documents or information that the applicants consider relevant to their review that are on the Department of immigration and Border Protection’s case file and/or the Department of Home Affair’s case file and the Tribunal’s case file.
The foreign language certified statements and the English translated certified statements are to be provided to the Tribunal. The statements must be correctly witnessed and accompanied with identification documents for the authors, for example a certified copy of the person passport or birth certificate.
Translations provided by non-certified translators outside of Australia should be endorsed by the translator with their full name, address, telephone number and details of their qualifications and experience in the language being translated.
Should telephone, chat and/or message records be provided to the Tribunal, clearly identify information that relates to the financial aspect of the parties’ relationship and the nature of their household and the social aspects of their relationship and the nature of their commitment to each other and explain why the information is relevant to these aspects of the parties’ relationship. In addition, where there is information relating to these aspects of the relationship, the explanation of its relevance to be placed directly underneath the information. Independent information identifying the holders of the accounts to be provided. The messages are to be clearly identified by the independent messaging platform with the original message provided. If the messages are in a language other than English they need to be translated into English by a translator with a current ‘Translator’ level certification and accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI) who is independent and not involved in or associated with the case under review.
If you bring an original document to the hearing to submit as evidence, you should also bring a copy of the document. If you do not bring a copy, the original may not be returned until the end of the review.
On 25 May 2022, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, from the applicant’s father and the sponsor’s mother. The applicant was represented in relation to the review.
The Tribunal has taken into consideration, individually and completely the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing before coming to its decision.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUE
The first issue is whether at the time of application the parties’ marriage was valid according to the Act. The second issue is whether the applicant meets PIC 4020 as required by cl. 820.226 of Schedule 2 to the Regulations. The third issue is whether the parties sponsor are genuine spousal partners as defined by s.5F of the Act or genuine de facto partners as defined by s.5CB of the Act.
BACKGROUND ON THE EVIDENCE
The applicant was born in in [year] in Onitsha, Anambra, Nigeria. His parents, [and specified family members] reside in Nigeria. The applicant declared one previous marriage to [Ms A]. For clarity [Ms A] is also referred to as [a variant name of Ms A] on different documents. In this decision record her name is recorded as it appeared on the documents.
The sponsor was born in [year] in [Country 1]. The sponsor has [specified family members] who reside in Australia. [In] February 2007, she entered Australia as the holder of a Humanitarian visa. The sponsor’s child was born in [year]. The sponsor declared no previous relationship. [In] October 1999, she became an Australian citizen by grant.
On 21 December 2008, the parties first met in Ghana. On 1 August 2014, the parties committed to a shared life together. [In] September 2015, the parties married. The parties have two children together who were born in [specified years].
CONSIDERATION OF CLAIMS AND FINDINGS
PIC 4020
Broadly speaking, PIC 4020 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 three 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 is 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.
'Bogus document' is defined in 5(1) of the Act.
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.
A document only needs to meet one or more of the above definitions (a) to (c) above to be a bogus document. The following examples are not exhaustive, but only seek to demonstrate the wide range of documents that fit the definition of bogus document in the legislation.
The delegate’s decision informed the Tribunal of the following information:
·On 24 January 2018, the Department wrote to the applicant and invited him to comment on information. He was invited to respond to adverse information that he entered a contrived relationship with the sponsor for the sole purpose of gaining entry to Australia. He was advised that there is evidence to suggest that he provided, or caused to be provided, a bogus document or false and misleading information in relation to the visa application and that he may fail to satisfy PIC 4020(1).
·The applicant was told that he claimed to have known the sponsor since 2008 and the parties claim to have committed to each other on 1 August 2014 and married [in] September 2015.
·As part of the partner visa application the applicant provided a Marriage Certificate with registration [number]. The certificate stated that at the time of the parties’ marriage the applicant was ‘divorced’. However, the Department has information that suggests that the applicant was married to another person, [Ms A variant], at the time of his marriage to the sponsor.
·At the time of the partner visa application the applicant provided a divorce certificate, [number] issued [in] June 2014 for his divorce from [Ms A variant]. The divorce certificate was sent to the Departmental office in [Country 2]. Departmental investigations concluded that the divorce certificate was non-genuine and as such considered to be bogus.
·On the sponsorship and visa application forms the parties declared that the applicant was in a married relationship with [Ms A] from [April] 2013 to [June] 2014. They stated that the relationship was dissolved by a High Court.
Additionally, recorded in the delegate’s decision record is that in the application for the Partner visa (Subclass 820) visa, the applicant provided the following information:
·In form 47 SP the applicant declared a previous marriage to [Ms A] [in] April 2013. He stated that the relationship ended in divorce [in] June 2014.
·On 21 November 2015 the applicant provided a decree nisi of dissolution and certificate of decree absolute for his previous marriage to [Ms A] dated [in] June 2014.
·On 21 November 2015, the applicant provided a Marriage Certificate for his marriage to the sponsor dated [in] September 2015 where he is recorded as divorced.
·The Department conducted checks to confirm the information and documents the visa applicant provided in the partner visa application. It was confirmed that the decree nisi of dissolution and certificate of decree absolute for his previous marriage to [Ms A] date [in] June 2014 was not genuinely issued by the stated authority and are counterfeit. Investigation concluded that the marriage certificate was found to be non-genuine and as such considered to be bogus.
The applicant responded to the Department and stated the following: His relationship with [Ms A] broke down. He spoke with his father who suggested that he contact a lawyer to file for divorce. He paid the lawyer a fee and was not aware of the procedure to obtain a divorce and divorce certificate. After he appeared in court and after the first court date, he didn’t see the lawyer again or hear from him for several months. By that time, he had travelled to Australia. The lawyer advised him that he had obtained the divorce on his behalf and he had the divorce certificate which the applicant asked to have sent to him. The certificate appeared to be genuine and had the official and legal features of a divorce certificate. He accepted the divorce certificate as genuine as it had been provided by his legal practitioner. He believed that as he had appeared in court with the lawyer before he went missing only to reappear with the divorce certificate. He had no knowledge that the certificate was fake or bogus. He is a victim of circumstances and fraud. He believed he was divorced from [Ms A] and proceeded with his marriage to the sponsor and provided the divorce certificate as part of his visa application.
On 21 February 2018, the applicant provided a statement to the Department, where he declared the following: the sponsor was in a relationship with the father of her son [Son A]. That relationship ended when her former boyfriend was incarcerated about [number] years ago. The sponsor didn’t enter into any other relationships until her relationship with the applicant. He does not have another relationship in Nigeria. He was divorced from his ex-partner and at no time has that relationship re commenced. He has lived with the sponsor for three years and has no other relationship. The sponsor has been introduced to his parents in Nigeria and her family recognises him as her husband. The sponsor is currently [pregnant] with his child. The parties’ relationship is exclusive and genuine and continuing and they love each other.
In a statutory declaration dated 15 May 2022, the applicant stated the following: he is unaware of the bogus documents the subject of the review on the basis he did not produce them himself. He undertook genuine steps to obtain a valid divorce certificate by contacting a lawyer to file for divorce. The applicant provided the Tribunal the following:
·A decree nisi of dissolution of marriage claiming to be issued in the High Court of Lagos State, in the [Division 1] [reference number] between the petitioner [the applicant] and the respondent [Ms A variant]. This recorded that the court makes an order for a decree nisi for the dissolution of the marriage between [the applicant] and [Ms A variant] whose marriage was solemnised [in] April 2013 at the Federal Marriage Registry, Abuja. It stated that the decree nisi shall be absolute three months from [a day in] October 2021.
·A copy of the judgement claiming to be made in the High Court of Lagos State, in the [Division 1] [reference number] between the petitioner [the applicant] and the respondent [Ms A variant]. This recorded that since their marriage [in] April 2013 the petitioner and respondent had never lived together.
·A copy of a certificate of decree nisi having become absolute issued by the Court of Lagos State, in the [Division 1] between the petitioner [the applicant] and the respondent [Ms A variant]. This certifies that the decree nisi of dissolution of the marriage between the petitioner and respondent became absolute on [a day in] January 2022.
The applicant told the Tribunal the following: He and [Ms A variant] married secretly in April 2013 in Nigeria. Her family did not give their blessing for the marriage and they didn’t live together. [Ms A variant] wanted them to live together and he wanted the family blessing before they lived together. A few months after the marriage [Ms A variant] told him that if he was not going to move in and live with her, she was no longer interested in the marriage. He met with a lawyer who took his statement and said he would file for divorce. After two months he hadn’t heard from the lawyer and went to his office. The lawyers partner advised him that the lawyer was unwell. In December 2013 or January 2014, the lawyer advised him that he didn’t need to do anything else. The applicant didn’t go to court because they hadn’t lived together and didn’t have any children. He then stated that he thought they had gone to court and he saw the registrar who took his statement and he didn’t appear before the judge. He telephoned the lawyer but couldn’t make contact. Eventually, the lawyer telephoned him and advised that he had the divorce certificate which he sent to him. The certificate looked genuine and he submitted it with the visa application. When he received advice from the Department challenging the authenticity of the document, he called a friend to help confirm that the document was genuine. His friend checked the registry and the divorce was not entered on the registry and the judge didn’t exist. He contacted another lawyer and was told that this type of thing happens a lot. He attended a virtual court hearing before a judge. The judge told him that as he had not lived with [Ms A variant] the marriage could have been annulled. The court issued the certificate of decree nisi of dissolution of the marriage between [Ms A variant] and the applicant and it became absolute on [a day in] January 2022.

The Tribunal is not satisfied 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, 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. The applicant provided divorce documents to support that his marriage with [Ms A variant] ended [in] June 2014. Departmental investigations found that the divorce documents were not issued by the claimed issuing authority. The applicant provided information about his attendance at court to expedite divorce proceedings, initially stating he had not gone to court and then stating that he had gone to court. He argues that he hired a lawyer to proceed with the divorce. He stated that he lost contact with the lawyer and after entering Australia the divorce documents were provided to him. The applicant has not provided any independent evidence to support these claims. The Tribunal does not accept the applicant’s argument because logically had the applicant attended a legitimate court to proceed with divorce proceeding, the divorce documents issued by the court would have been found genuine and after investigation the divorce documents were found not to have been issued by the claimed issuing authority.
The Tribunal is of the view that the applicant could not have misunderstood the significance of providing divorce documents to evidence a divorce from [Ms A variant]. It finds that by not disclosing the information that he continued to be married to [Ms A variant], the applicant has given, or caused to be given, information in support of his visa application that was false or misleading, at the time it was given, in a material particular and that the information the applicant gave was provided intentionally to secure the grant of the visa.
The Tribunal considers that the applicant in providing information that he had divorced [Ms A variant] before his marriage to the sponsor questions his credibility and the truthfulness of the information he provided in the partner visa application and may have been relevant to the criterion in cl. 820.211(2) of Schedule 2 to the Regulations.
Therefore, the applicant does not meet PIC 4020(1).
Is the applicant the spouse or de facto partner of the sponsor?
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.
Is the applicant the partner of an eligible person?
The Tribunal is satisfied that the sponsor, at the time of the visa application and decision, was an Australian citizen who had turned 18.
Are the parties in a spousal relationship?
‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Marriage Act 1961. (the Marriage Act)
Are the parties validly married?
The Marriage Act requires that marriages are void if either of the parties, at the time of the marriage, are lawfully married to some other person and the marriage was valid in the country in which it was solemnised; and neither party to the marriage, for the purposes of the Marriage Act, was domiciled in Australia at the time of the marriage.
As detailed above the applicant provided evidence that his marriage to [Ms A variant] ended in divorce [in] June 2014. He provided a decree nisi of dissolution and certificate of decree absolute for his previous marriage to [Ms A] dated [in] June 2014. The applicant also provided a marriage certificate relating to his marriage to the sponsor [in] September 2015 where he is recorded as divorced.
The Tribunal has found that the applicant provided false and misleading information relating to his divorce to [Ms A] [in] June 2014. Therefore, [in] September 2015, at the time the applicant married the sponsor, he was lawfully married to [Ms A]. There is no evidence before the Tribunal that the applicant’s marriage to [Ms A] was not valid in the country in which it was solemnised or that neither party to the marriage, for the purposes of the Marriage Act, were domiciled in Australia at the time of the marriage.
The Tribunal is satisfied that at the time the applicant married the sponsor, he was lawfully married to [Ms A variant]. There is no evidence before the Tribunal to suggest the applicant’s marriage to [Ms A variant] was invalid in the country it was solemnised and no evidence to suggest that either the applicant or [Ms A variant] were domiciled in Australia at the time of the marriage.
The Tribunal is not satisfied that the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s. 5F(2)(a) of the Act.
Therefore, the applicant does not meet s. 5F(2)(a) of the Act.
Are the parties in a de facto relationship?
As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a married relationship but may meet the criteria based on being in a de facto relationship as defined in s. 5CB of the Act. A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis and the couple are not related by family: s 5CB (2) of the Act.
In forming an opinion whether they are in a de facto relationship, consideration must be given to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the other requirements for a de facto relationship met?
The financial aspects of the parties’ relationship
At the time of visa application, the parties declared having joint bank accounts ending 2153 and 0451 with [a bank]. They sated that the applicant paid the gas account and the sponsor’s child’s school care fees with [Agency 1] and his share of the rent. The sponsor paid the electricity and internet bills and her share of the rent.
[A] bank account ending 2153 is in the parties named. Statements dated 1 January 2017 to 31 March 2017 record credit transactions noted as internal transfer from [savings] account ending 4936 and debit transactions for various ad hoc goods and services.
[Bank 1 Account 1] account ending 8711 is in the parties’ names. A statement dated 29 June 2017 to 30 June 2017 recorded one transaction and a credit closing balance of $100. Statements dated 2017 record credit transactions including those notes as ‘Salary [Employer 1]’, ‘Salary [Employer 2]’, ‘Transfer [Bank 1 Account 2]’, 14 July ‘Salary [Employer 3]’ $3,977, 14 August $3,977 and 5 September $2,503.08. Debit transactions include those noted as ‘[Agency 2] Rent’, ‘[Supplier 1] Gas’, ‘[an investment business]’, withdrawals via mobiles, 11 September ‘[another busines]’, and for ad hoc goods and services. Statements dated 2018 record credit transactions including those notes as follows ‘Salary [Employer 2]’, ‘Salary [Employer 1]’, 28 March ‘Deposit Rental board $1,000.36’, various ‘Tfr [Bank 1 Account 2]’. Debit transactions include those noted as ‘[Agency 2] Rent’ for $575, ‘[Supplier 1] Gas’, withdrawals by mobile, debit card purchases and cardless cash withdrawals and for ad hoc goods and services. Statements dated 2019 to 2022 record deposits for the applicant’s salary, transfers from a [Bank 1 Account 1] account, withdrawals as transfer bump saving, transfer bills, transfer to [Bank 1 Account 1] and [Bank 1 Account 2]
[Bank 2] account ending 7195 is in the applicant’s name. A statement dated 1 January 2015 to 30 June 2015 recorded a credit closing balance. A statement dated 11 August 2015 to 17 November 2015 recorded debit transactions noted as ‘[Agency 1]’ against card ending 3556. Statements dated 1 July 2016 to 31 December 2016 record credit transactions including those noted as ‘[Employer 4] wages’, ‘Salary [Employer 1]’, ‘from account 4338. Debit transactions include those noted as ‘direct debit childcare’, [various payments for subscriptions, school, rent and utilities]. Transactions lists dated 9 June 2016 to 8 February 2017 record debit transactions noted as ‘[School 1] against [Bank 2] account ending 8730. Transactions lists dated 3 January 2016 to 31 March 2017 record debit transactions noted as ‘Direct Debit [number] Childcare’.
[Bank 1 Account 1] Student account ending 1506 is in the sponsor’s name. A transaction list dated 31 March 2017 to 3 April 2017 recorded two credit transactions from an [account]. Debit transactions are for ad hoc goods and services.
A Residential Tenancy Agreement for [Address 1] starts on 28 June 2018 and ends on 27 June 2019 with weekly rent of $460. The agreement is signed by the parties.
A Residential Tenancy Agreement for [Address 2] starts on 24 July 2019 and ends on 23 July 2020 with weekly rent of $550. The agreement is signed by the parties.
Correspondence addressed to the applicant includes the following: 18 July 2016, [Employer 1] letter of appointment. [Supplier 1] gas summary for bills period 8 July 2015 to 7 October 2015 and 6 October 2016 to 3 January 2017. [Supplier 1] electricity summary for bills period 22 July 2015 to 21 October 2015. A letter dated 5 February 2018, from [School 1] is addressed to the applicant care of [Son A] in the account name of the sponsor. This detailed the fortnightly school fee plan for 2018 with credits of $600 made. Correspondence addressed to the sponsor includes: [Supplier 1] for account ending 7811 for 26 April 2017 to 21 July 2017. [A phone company] tax invoice for billing period 17 February 2017 to 16 March 2017 and 26 March 2017, [an employment service] pay advice.
In a post-hearing submission, the applicant declared the following: that he is the sole breadwinner for the household and the person responsible for paying the bills. Utility accounts are addressed to him and car repayments are discussed by the parties but do not show on the joint bank accounts.
The parties do not have any joint ownership of real estate or other major assets or any joint liabilities. The parties have not pooled their financial resources especially in relation to major financial commitments. They have legal obligations in respect of each other in relation to their joint bank account and the Residential Tenancy Agreement. The parties share day‑to‑day household expenses.
The nature of the parties’ household
The parties have lived together at several different residential addresses. They currently live with the sponsor’s child who is aged [age] and their two children who are aged [ages] years. The [eldest child] attends school and the other two younger children attend [school]. The applicant works full-time for one organisation and casually part-time on shift work for two other organisations. The sponsor primarily has remained at home caring for the children, however, recently began part-time employment. The parties share in the care of their children. They provided two Residential Tenancy Agreements signed jointly by them. The parties share the responsibility for the care and support of the children and share the responsibility for the housework
The social aspects of the parties’ relationship
At the time of the visa application, the parties declared attending church and social events together. They stated that their friends consider them to be a couple and invite them to different occasions.
Statutory declarations dated 2015, provide information including the following: [Mr A] had known the applicant for 18 years and the sponsor for 13 months. He had known the sponsor through his uncle in Nigeria and was in contact with him when he came to Australia. About a year ago the applicant introduced him to the sponsor. The parties visit him and his family. The sponsor brings her son [Son A] over who enjoys playing with his children. The parties are fond of each other and are in love. The applicant is a good father to [Son A] which makes the sponsor happy. [Mr B] had known the sponsor for 12 years and the sponsor for 14 months. He and the sponsor were undergraduates in Nigeria. He knows that the parties have been in a loving relationship since 2014 and he attended their marriage registry.
On 12 February 2018 and 8 July 2021, [the] applicant’s father stated the following: On 26 September 2017 the parties travelled to Nigeria and the sponsor was introduced and welcomed into the family. During their visit in Nigeria the parties stayed with him in his home. [In] October 2017 they travelled to see the sponsors uncle in Ghana. [Later in] October 2017, they returned to Nigeria and [days later], returned to Australia. The applicant’s father told the Tribunal the following: the parties have visited him. They are married and have two children together and the sponsor has a child from another relationship. The family approved and supported their marriage. The sponsor’s mother told the Tribunal the following: the applicant is a good man and she is honoured that he came into her daughter’s life. He has been good to the sponsor and the children and has good values and is respectful. She loves him as if he were her own son. All witnesses believe the parties relationship to be genuine. Photographic evidence depicts the parties together and with others at different locations.
The applicant told the Tribunal that both of their families know of their relationship and are supportive. He stated that they like to take the children to the park or go out to dinner with friends and have travelled together in Nigeria and Australia.
The parties represent themselves to other people as partners and are recognised by other people as being in a partner relationship. They plan and undertake joint social activities together.
The nature of the parties’ commitment to each other
At the time of the visa application, the parties stated that they are aware of their past relationships, family history and cultural background. They declared that they met on 21 December 2008 and on 1 August 2014, shared a life together to the exclusion of all others.
In an undated letter provided to the Department the sponsor provided information including the following: in December of 2008, she visited Africa with her friends and they decided to visit [Country 1 and other countries]. They went to clubs and attended a Christmas function where she noticed the applicant. They danced together and talked and she discovered that the applicant was visiting from Nigeria with his friend. They exchanged telephone numbers and went their separate ways and kept in touch over the years. In December 2013, the applicant told her that he was planning to come to Australia to study. She helped him as much as she could. At the time she was leasing a two-bedroom apartment in [Suburb 1] and the applicant moved in (as a tenant) and they were happy with the arrangement. Having the applicant around was good for her and for her son and he became the father/male figure for her son. A few months later, they became romantically involved. After living together for over a year, the applicant proposed and the parties married at the registry in [Suburb 2]. They planned to travel to Africa for a traditional wedding ceremony with his family. They planned to have children, have a home and grow old together.
The Tribunal advised the applicant of the following: On 24 May 2022. the Department issued a certificate pursuant to s. 375A of the Act relating to the non-disclosure of information on the Department’s file. The Tribunal considers that this certificate was validly made. He was invited to comment on the validity of the certificate.
The Tribunal put the core of the information the subject of the certificate to the applicant under s.359AA of the Act. He was told the relevance and consequence of the information. He was invited to comment on or respond to the information and told he could seek additional time to comment on or respond to the information. The applicant sought and was granted additional time to comment on or respond to the information. The core of the information, the subject of the certificate, was put to the applicant is as follows:
·As part of the partner visa application currently under review, the applicant provided a divorce certificate recording that he divorced [Ms A] [in] March 2014.
·In April 2014, the applicant applied for a student visa. As part of that application, he provided a marriage certificate relating to his marriage to [Ms A]. On the visa application form at question 76, he provided the details of [Ms A] and claimed the details to be that of his wife.
·On 29 September 2015, the Department received information as follows: the relationship between the parties is contrived. The applicant entered the relationship with the sponsor a month prior and married last week. The parties were initially roommates. The sponsor is in a relationship with another person and has a child by that person. The parties live together in different rooms. The person providing the information provided detail information about the applicant including his name, age, nationality, telephone number and Facebook ID of [the applicant]. The person provided detailed information about the sponsor including her name, date of birth, nationality and telephone number.
In a post Tribunal hearing submission, the applicant stated the following: He provided the marriage certificate together with his visa application because as at the time of that application he was still legally married as the divorce had not been finalised and neither were, they legally separated. As of June 2014, when he entered Australia, the sponsor was not in any relationship, the father of her child was incarcerated in a [foreign] prison and this led to the end of their relationship. When he entered Australia, he lived with the sponsor as housemates. They fell in love and commenced a romantic relationship. The parties’ relationship commenced in July 2014 when he was certain that he was legally divorced from his previous wife.
On 3 February 2020, the applicant declared that the parties had two children together who were born in [specified years]. He provided New South Wales Birth Certificates for the children which recorded the sponsor as the mother and the applicant as the father.
On 26 May 2022, the Tribunal invited the applicant and the sponsor to provide DNA evidence to demonstrate the relationship between them and their claimed children. The applicant provided the Tribunal letters dated 29 June 2022, recording DNA evidence to demonstrate that the sponsor is the genetic mother of the two children. The evidence demonstrates that the applicant is not excluded as the genetic father of the children with a relative chance of paternity of 99.9999999998 percent for one child and 99.99999999999997 percent for the other child.
The parties met in 2008 in Nigeria. After the applicant came to Australia he lived with the sponsor as a flatmate. In August 2014, the parties committed to each as partners and have lived together in a partner relationship since that time. The parties have three children, two of whom are their biological children and the other who is the sponsor’s child. Over the time of their relationship, they have provided each other with companionship and emotional support and see the relationship as long-term.

There is no evidence before the Tribunal that the parties are related by family.
The Tribunal considered the evidence individually and completely. The Tribunal carefully considered aspects of the evidence, which concerned the Tribunal because it insinuated that the parties’ relationship is contrived. This included the allegations to the Department of the applicant providing false and misleading information as part of the visa application. The Tribunal does not condone the applicant providing false and misleading information as part of the visa application.
The Tribunal considered the evidence individually and completely. Overall, the Tribunal is satisfied by the parties’ oral evidence at hearing that they demonstrate knowledge of each other’s lives which is commensurate with a couple in a genuine and ongoing de facto relationship. In respect of whether there is a mutual commitment to a shared life as de facto partners to the exclusion of all others, the Tribunal accepts the parties’ oral evidence as presented at hearing and information in response to the allegations. It accepts that the parties at the time of application and at the time of decision had and have a mutual commitment to a shared life as de facto partners to the exclusion of all others, that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The applicant therefore meets the requirements of s. 5CB of the Act.
Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a) of Schedule 2 to the Regulations.
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the parties were at least 18 years old.
The applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
The parties’ de facto relationship began in August 2014 and the visa application was lodged on 29 September 2015. Therefore, at the time of application, the parties had been in the de facto relationship for at least the 12-month period ending immediately before the date of the application.
For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.
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 is no evidence of compelling circumstances that affect the interests of Australia.
Are there compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa?
In a statement dated 29 September 2015, the applicant declared the following: The sponsor is [pregnant]. She had [specified] surgery and continues to be in pain. She feels severely depressed. He is the breadwinner and only supporter of the baby and the sponsor’s [age]-year-old Australian citizen son. The child sees him as his father and he cares for him as a son. He pays the boy’s school fees and if the visa is not granted, his emotional and educational interests will be affected, as will his general wellbeing and development because every child needs a mother and father figure in their development. The financial hardship the sponsor will face with credit card debts and other expenses will be too much for her if she becomes a single mother of two as well as not being able to work full time.
There are various letters from [a named doctor] dated 2016 to 2018 giving reasons for carers leave for the applicant either to care for his stepson or for the sponsor.
In a statutory declaration dated 23 March 2018, the sponsor provided information including the following: She has lived with the applicant since 29 June 2014 and been in a relationship with the applicant since August 2014. [In] September 2015, they married and have lived together. The applicant plays a fatherly role with her son and cares for him and provides for him particularly relating to his education. She is [pregnant] and the applicant has supported her and her son financially, physically and emotionally. When she was in hospital for surgery he looked after her and took care of her son. She is not in a relationship with anyone else other than the applicant. They have shared living expenses and the responsibilities of the household and the raising of her son who calls the applicant ‘Daddy’. They are bonded as husband and wife and as a family and have no reason to be in any other relationship. Their relationship is genuine and continuing to the exclusion of all others.
In a statutory declaration dated 15 May 2022, the applicant stated the following: There are compassionate circumstances that will affect the lives of Australian citizens being the sponsor and her son and the parties’ two children. He has lived with his Australian wife for over seven years. He has a valid partner relationship with an Australian partner and qualified for the partner visa when the application was lodged. He has obtained a valid divorce order from the Nigerian courts. The Tribunal has the power to consider the corrected divorce order. At the time of his marriage to the sponsor and the time of the visa application he had no knowledge that the divorce document was bogus or fake.
A letter dated 29 March 2022 from [a named childcare centre] states that the applicant is responsible for the drop-off and pick-up of the parties’ two children from the centre on Wednesdays, Thursdays and Fridays.
The Tribunal considered the evidence individually and completely. It accepts that the parties have been living together in a partner relationship since August 2014.
It examined the parties’ limited financial resources. It thought about the applicant’s dedication to supporting the family by working full time while also working two additional shifts and the support he provides to the Australian citizen sponsor and the three Australian citizen children who are [specified ages] years old.
The Tribunal empathised with the difficulties the sponsor and the children would face financially, emotionally and psychologically if separated from the applicant. These circumstances led the Tribunal to be satisfied that there are compassionate circumstances, in this case, that affect the interests of Australian citizens that justify the granting of the visa.
For the above reasons, the Tribunal is satisfied that the requirements of PIC 4020(1) should be waived.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
decision
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·Public interest criteria 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations; and
·cl 820.211(2)(a) of Schedule 2 to the Regulations; and
·cl 820.221(1)(a) of Schedule 2 to the Regulations; and
·reg 2.03A.
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.
…
ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

[2022] AATA 2861

9 July 2022

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