1820973 (Migration) - [2022] AATA 2227

1820973 (Migration) [2022] AATA 2227 (6 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Abraham Michael Ishkhanian (MARN: 1678231)
CASE NUMBER:  1820973
MEMBER:David Barker
DATE:6 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 06 June 2022 at 3:41pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – misleading information in the visa application – previous countries of residence – relationship ceased – family violence claim – previous convictions and deportation – previous marriages and names – travel history – applicant’s claimed minimal involvement in the visa application process – compelling and compassionate reasons – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 801.221, 801.226; 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
Singh v MIBP [2015] FCCA 2776
Singh v MIBP [2018] FCAFC 52
Trivedi v MIBP (2014) 220 FCR 169
Trivedi v MIBP [2014] FCAFC 42
Vyas v MIAC [2012] FMCA 92
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 Home Affairs on 2 July 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 19 November 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 801.226 of Schedule 2 to the Migration Regulations 1994 (Cth) because they determined that required public interest criterion were not met because a bogus document or false or misleading information in a material particular was given, or caused to be given in association with the visa application, or in relation to a visa which the applicant held in the 12 months before the current visa application.
On 22 February 2022 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 17 March 2022. On 9 March 2022 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
The…

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 1820973 (Migration)

Details

AGLC: 1820973 (Migration) [2022] AATA 2227
Case: [2022] AATA 2227
Decision Date: 6 June 2022

CaseChat Overview and Summary

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801, by a national of Fiji. The applicant had initially arrived in Australia on a visitor visa and subsequently applied for a combined Partner (Temporary) (Subclass 820) and Partner (Residence) (Subclass 801) visa based on her relationship with an Australian citizen sponsor. The Department of Home Affairs had received information suggesting the applicant had provided false and misleading information in her visa application, including allegations of prior marriages, use of aliases, and deportation from other countries due to criminal convictions for offences including marriage fraud. The applicant had acknowledged that her relationship with the sponsor had ceased and had provided information in support of a family violence claim. The Administrative Appeals Tribunal was required to review the decision not to grant the residential Partner visa.

The primary legal issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4020, as required by clause 801.226 of the Migration Regulations 1994. This criterion mandates that there must be no evidence of the applicant providing bogus documents or false or misleading information in relation to the visa application or a previous visa held within the preceding 12 months. It also requires that the applicant and their family members have not been refused a visa due to a failure to satisfy PIC 4020(1) within a specified period, and that the applicant satisfies the Minister as to their identity. The Tribunal also considered whether compelling and compassionate circumstances justified a waiver of these requirements under PIC 4020(4).

The Tribunal conducted a de novo merits review of the application. It noted that the applicant had herself provided information to the Tribunal that mirrored the allegations of providing false and misleading information, thus obviating the need for further requests for comment under s 359A of the Migration Act 1958. The Tribunal found that the applicant had provided false and misleading information in relation to her visa application, specifically concerning her previous marriages, names, and travel history, including deportations and criminal convictions. The Tribunal concluded that the applicant had failed to satisfy PIC 4020(1) and that there were no compelling or compassionate circumstances that justified a waiver of this criterion.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant is a national of Fiji and is [age] years old. She first came to Australia in [August] 2014 on a [Visitor] visa, which was valid until [November] 2014. The applicant lodged an application for a combined Partner (Temporary) (Subclass 820) visa and a Partner (Residence) (Subclass 801) visa (the residential Partner visa) on 19 November 2014, on the grounds of being in a spousal relationship with an Australian citizen, [named] (the sponsor) who lodged a sponsorship application in support of the applicant’s visa application. The applicant was granted a Subclass 820 visa on 23 May 2016. On 15 November 2016 the Department sent the applicant a natural justice letter inviting her to comment on information received by the Department which claimed that the spousal or de facto relationship on which her Partner visa applications were based had ceased and the implication that this would result in the refusal of her application for the residential Partner visa. The applicant subsequently acknowledged the relationship had ceased and provided declarations and other information in support of a family violence claim. The decision record of the delegate, a copy of which was provided with the review application, indicates that in the course of their processing of the residential Partner visa application they had cause to consider information provided to the Department which alleged the applicant had provided false information in association with the visa application. This information indicated that contrary to responses provided on visa application forms, the applicant had resided in [Country 1] and in [Country 2] until she was deported to Fiji. The information claimed that the applicant had married in both countries and following her return to Fiji she changed her passport so as to disguise her travel history. The delegate noted that the applicant, [name variant 1], born [on date], had also been known as [name variant 2] and [name variant 3], and as well, was deported from [Country 2] in 2013 where she had criminal convictions for marriage fraud, burglary, vehicle theft and robbery. The delegate stated that the aforementioned information gave rise to concern that the applicant had provided information which was false and misleading in a material particular in relation to the Partner visa applications, lodged on 17 November 2014, in association with which she had submitted a Form 47SP – Application for migration to Australia by a partner, signed by the applicant on 13 November 2014, (the 47SP form) in which she had declared that she had not:·been removed or deported from any country;·been excluded from or asked to leave any country;·been convicted of a crime or offence in any country (including any conviction which is now removed from official record);·been married to a person other than her current sponsor (including if she was still legally married to that person)·been known by any other names (including name at birth, previous married names and aliases) other than [name variant 1].

Evidence

Evidence Before The Court

The letters from [Teacher A] reports that he taught the applicant when she was in Year 9 and Year 10 at [a named] School and described the applicant as a young woman of integrity and honesty who in the time he has known her has never given any cause for concern. [Teacher A] stated that the applicant is a community minded individual who has carried on a family tradition of community involvement and service. [Teacher A] is aware the applicant’s marriage to the sponsor has ended by divorce in circumstances which have affected her emotionally. He expresses hope that the applicant can continue to make a positive contribution to her community.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has reviewed the material on the Department and Tribunal files, including the applicant’s comments and response to information potentially unfavourable to her claims which the Department and Tribunal invited her to comment on or respond to. The Tribunal notes the written submissions from the applicant’s representative, dated 9 March 2022, are structured in a manner which respond to the representative’s review of the delegate’s decision record. Whilst having regard to the delegate’s decision record, the Tribunal is required to undertake a de novo merits review of the residential partner visa application and has preferred structuring its consideration of the applicant’s claims and evidence by way of reference to the legislative criteria. The Tribunal noted that there is a 376 Certificate on the Department file which in the view of the Tribunal is not a valid Certificate. As a consequence the Tribunal formed the view that it would be inappropriate to place any restriction over the applicant’s access to documents in the Department file. In relation to the documents specified in the invalid certificate, these contain allegations that the applicant gave false information in relation to her Partner visa applications. This information is discussed in the delegate’s decision record and in submissions and declarations provided by the applicant to both the Department and Tribunal. As such the Tribunal did not perceive it necessary to put these particulars of information to the applicant for her comment pursuant to s 359A, as the applicant has herself provided this information to the Tribunal. Other information on the specified documents is not in the view of the Tribunal relevant to the matters under consideration in the current matter and the Tribunal has placed no weight upon that other information. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 801.226 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).

Decision

Reasons for decision

There is no evidence before the Tribunal that the applicant meets the criteria for any other subclass within the class of visa sought.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.David BarkerMemberATTACHMENTMigration 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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