1809324 (Migration) - [2018] AATA 3692

1809324 (Migration) [2018] AATA 3692 (30 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1809324
MEMBER:Margie Bourke
DATE:30 August 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the applicants meet the following criteria for Subclass 820 (Spouse) visas:
·Public Interest Criterion 4020 for the purposes of cl.820.226 of Schedule 2 to the Regulations.

Statement made on 30 August 2018 at 3:32pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – Misleading information – Department home visit – Attempt to conceal the identity of first husband in photographs with son –False information knowingly provided to Departmental officers – Information not material to whether the applicant is in a genuine relationship with the sponsor – Decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359AA, 376, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 820.226, Schedule 4, Criteria 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Sharma v MIMAC [2013] FCCA 1280
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 March 2018 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 18 June 2014. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.820.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicants met the requirements of Public Interest Criterion (PIC) 4020.
The first named applicant, [appeared] before the tribunal on 23 July 2018 to give evidence and present arguments. The second named applicant, a [age] year old child, did not attend the hearing. The tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Preliminary Issues
Application for Postponement of the Hearing
The tribunal received a telephone call from the representative at 4pm on Thursday 19 July 2018, advising that the first named visa applicant had advised him that there were issues of domestic violence and the sponsor would not be attending the hearing scheduled for the next Monday. The representative also advised the requested Italian interpreter would not be required for the hearing scheduled for the next Monday.
The representative…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1809324 (Migration)

Details

AGLC: 1809324 (Migration) [2018] AATA 3692
Case: [2018] AATA 3692
Decision Date: 30 August 2018

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The applicant sought review of a decision made by the Department of Home Affairs. The core of the dispute involved allegations that the applicant had provided false or misleading information to the Department, specifically in relation to concealing the identity of a former partner in photographs with their son during a home visit.

The Tribunal was required to determine whether the applicant had provided false or misleading information in relation to their visa application, and if so, whether that information was material to the assessment of their genuine relationship with the sponsor. A further issue involved the validity and relevance of certain certificates and confidential information placed on the Department's file, which the Tribunal considered in relation to Public Interest Criterion (PIC) 4020.

The Tribunal reasoned that while the applicant may have attempted to conceal the identity of a former husband in photographs, this information was not material to the assessment of whether the applicant was in a genuine and continuing relationship with the sponsor. The Tribunal found that the information in question did not relate to the criteria for the visa application itself, and therefore did not engage PIC 4020 in a way that would mandate refusal. The Tribunal also considered and dismissed a request for postponement of the hearing, finding that the reasons provided were not sufficient to warrant a delay.

Consequently, the Tribunal remitted the applications for Partner (Temporary) (Class UK) visas for reconsideration. The direction was that the applicants meet the criteria for Subclass 820 (Spouse) visas, specifically finding that Public Interest Criterion 4020 for the purposes of clause 820.226 of Schedule 2 to the Regulations was satisfied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCEPreliminary IssuesApplication for Postponement of the Hearing The tribunal received a telephone call from the representative at 4pm on Thursday 19 July 2018, advising that the first named visa applicant had advised him that there were issues of domestic violence and the sponsor would not be attending the hearing scheduled for the next Monday. The representative also advised the requested Italian interpreter would not be required for the hearing scheduled for the next Monday. The representative then sent an email to the tribunal confirming the sponsor would not be attending, and the Italian interpreter would not be required. The representative also submitted that [the first named applicant] sought to have the hearing postponed in order to provide all the evidence, and that the representative would be grateful for extra time. I decided to discuss the request for postponement at the commencement of the hearing, to ascertain the relevance of the further evidence the first named visa applicant wished to obtain, to the issue of meeting the requirements of PIC 4020. The hearing commenced as scheduled, and the discussion about whether the review should proceed or be postponed is recorded further on in this decision record.S.376 and s.375A certificates There were two certificates on the Department file [number]. There were no certificates on the 2014 Department file which had also been provided to the tribunal. The applicants’ representative advised he had sought and been provided with disclosure from the Department. By letter dated 13 June 2018, the tribunal provided the representative and the applicants with copies of both certificates, and invited them to provide written submissions in relation to the validity of the certificates. No submissions were received in relation to the validity of the certificates. The representative advised the tribunal he did not intend to make any submission in relation to the validity of the certificates in the hearing. I advised the representative and the first named visa applicant that the s.376 certificate related to printout information concerning another person. The certificate recorded the information was given to the Department in confidence. The specified folios 85 to 88 are poorly marked, but I am satisfied they are filed in numerical order. The printout information appears to be Departmental information, and the first folio has “previous partner” written on it. I assume the information was placed on the applicants’ file in confidence. I am satisfied of two essential points. The information relates to a person other than the applicants, and the information on the printout sheets is not relevant to this decision. For these reasons, I have decided the certificate is valid, and I have not released the information. I have not considered the information in folios 85 to 88 as relevant to this review, or as relevant to any assessment in making the findings in this decision record.

Decision

Reasons for decision

On the basis of the above, the applicants satisfy PIC 4020 for the purposes of cl.820.226.DECISION The Tribunal remits the applications for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the applicants meet the following criteria for Subclass 820 (Spouse) visas:·Public Interest Criterion 4020 for the purposes of cl.820.226 of Schedule 2 to the Regulations.Margie BourkeMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s.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. …

Ratio Decidendi

Legal Principle Established

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