1820973 (Migration)

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 applicant was represented in relation to the review.
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].
The delegate stated that in association with the visa application the applicant had declared that in the last 10 years she had not visited any country except Fiji and Australia and that during a telephone interview with a Departmental officer, on 15 January 2018, stated that:
·she had never been to [Country 1] or [Country 2];
·her current passport is the only passport she had ever held;
·she had only ever used her current name or her current married name (with the sponsor’s surname) and that she had not been known by any other names.
The delegate noted that the Department sent the applicant a natural justice letter on 3 April 2018, inviting her to comment on the suspected false and misleading information supplied to the Department. The delegate noted that in statements provided in response to the natural justice letter the applicant confirmed that:
·she married in Fiji and was then divorced in or about 1994;
·she had also been known as [Alias A] and [Alias B];
·she was deported from [Country 1] and [Country 2];
On 9 March 2022 the applicant provided a written statement, dated 1 March 2022, in which further to her earlier submissions[1] she, in summary, brought to the attention of the Tribunal that:
·She received work-related injuries on or about [a day in] July 2019 which prevented her performing duties in her employment with [Employer 1] until [November] 2019 on which date she unsuccessfully attempted a return to work but that as a consequence of further injury she has required further medical treatment and suffers from severe pain. The applicant attempted a further return to work but [in] June 2020 she incurred a third injury to the same area as her previous injuries.
·Her concern now is her recovery and rehabilitation from the work-related injuries, which require ongoing treatment and long-term injury management. She had surgery to her [body part] in April 2021 and has yet to receive further surgery to her [body parts]. If she was to be returned to Fiji, she would not be provided with any specialist treatment and no one in Fiji would take responsibility for injuries incurred in Australia.
·If her injuries are not treated by the right specialist, she would never be able to perform any employment activities in the future and her whole life will become a waste and her ability to get future employment will be destroyed. As the work-related injuries occurred in Australia and are covered by employment legislation she must be treated in Australia and able to fully recover from her work-related injuries in an Australian workplace. In Fiji she would not be provided with any duty of care for being injured in Australian employment by an Australian employer under the Australian employment laws.
[1] The Tribunal has taken the applicant’s reference to earlier submissions to be those provided to the Department in response to the natural justice letter of 3 April 2018, as whilst the applicant, through her representative, has interacted with the Tribunal on a number of occasions since lodging her review application in July 2018, these have been in relation to matters such as seeking confirmation of her review application for Medicare reasons, rather than submissions pertaining to the PIC 4020 issue.
On 9 March 2022, the Tribunal also received support letters, dated 28 February 2022, from: [Sister A], the [sister] of the applicant; [Friend A], family friend; and [Friend B], friend of the applicant. Further evidence provided by the applicant in support of her review includes:
·Medical certificate dated 2 March 2022 from [a named] general practitioner;
·NSW Government State Insurance Regulatory Authority Certificate of Capacity / Certificate of Fitness, dated [in] February 2022;
·Written submissions, dated 25 March 2022 from [Solicitors 1];
·Australian Taxation Office – individual taxation returns (ATO tax returns) for the 2018, 2020 and 2021 income years;
·Divorce application lodged with [a Country 2 court] [in] May 2005;
·Statutory declaration of the applicant signed and dated 24 March 2022.
The statutory declaration of 24 March 2022 in summary declares that:
·In relation to the Partner visa application, lodged on 19 November 2014, the applicant had no intention to provide any misleading information or documents to the Department for the purposes of gaining a visa. Her relationship with the sponsor was always genuine and continuous;
·In relation to Issue 1, her travel history, when she moved to Australia, she was naïve and completely innocent and did not know anything about Australian immigration rules. The sponsor had control over the completion and lodgement of her Partner visa application. She had before their marriage disclosed all information about her past to him without hiding anything. He told her to not worry, so she signed forms and declarations where he instructed her to;
·In relation to Issue 2, her previous marriage in [Country 1], the delegate’s statement with respect to this factor is incorrect, she was never validly married in [Country 1]. She did however marry a [Country 1] citizen, whilst in Fiji. The sponsor had a copy of the divorce certificate in relation to this marriage but did not disclose the previous marriage or submit her divorce certificate[2] to the Department;
[2] A copy of the divorce order was provided to the Department by the applicant. It indicates the applicant’s marriage to [Mr A] ceased on 7 October 1993.
·In relation to Issue 3, her residence in [Country 2] and [Country 1], she asked the sponsor if she should declare her stay in [Country 2] and [Country 1] and he told her not to worry and that there was no need to disclose anything. She accepted this as he was an Australian citizen and as he understood Australian immigration laws she assumed he would abide by them;
·The sponsor told her that he wanted to avoid paying a bond associated with sponsoring her for the visa, as he experienced lots of issues when bringing a previous wife to Australia. He subsequently always blackmailed her and threatened to have her deported;
·After the parties separated in August 2016, the applicant informed the Department of the separation but did not tell them about the adverse information because of the sponsor’s threats. He said she would be in trouble and she believed him. However in September 2017 he filed for divorce and demanded that she pay the filing fee. As he had left the relationship she refused to pay and assumes he disclosed the adverse information to the Department because he was angry with her;
·The applicant acknowledged that she did not tell the truth during a phone interview with the Department and that when asked about previous marriages and her history in [Country 2] and [Country 1], she did not tell the truth because in her head she still heard the sponsor’s voice telling her not to discuss this information with anyone;
·In relation to Issue 4,[3] her deportation and criminal records in [Country 2], the applicant denies all allegations. When she was in [Country 2] she mixed with the wrong people and was used and manipulated by her ex-husband [Mr B]. This resulted in her having been connected to criminal conduct that she was not involved in;
·The applicant was married to [Mr B] between [year] and 2005. They did not have children and the relationship was very abusive, as her former husband was a drug addict and very violent man. She was subjected to domestic violence during the relationship and following her separation from [Mr B], who carried a handgun and was connected with gang members. The applicant was forced to deliver and sell drugs on his behalf. She developed depression and other mental health problems as a consequence of the abuse she suffered;
·After her divorce from [Mr B], in or around March 2005 the applicant was unable to get accommodation in her own name due to her damaged credit record. She was introduced to a woman [name provided] who volunteered to assist and support her. The applicant contributed US$20,000 towards the purchase of a townhouse, which was placed in the woman’s name. The other woman obtained credit to pay for her share of the townhouse and also a car which they both used. After they had resided together for over a year their relationship soured and the applicant received a notice to vacate. The applicant demanded the return of the US$20,000 she had contributed towards the purchase of the townhouse and planned to move out peacefully on receipt of this money. Meanwhile, the applicant started noticing that [Mr B] and some of his drug addict friends started visiting the townhouse at the invitation of the other woman. This caused further conflict in their relationship;
·An incident occurred in which intruders entered the townhouse, attacked the other woman and grabbed hold of the applicant. They were tied up and the intruders drove off in the other woman’s car. Following a police investigation and arrest of the intruders, who were associates of [Mr B], the applicant was charged with various serious crimes related to robbery and other associated charges. The 2 intruders gave evidence that the applicant planned and orchestrated the robbery. The applicant was found guilty and sentenced to [a period of] imprisonment, of which she served 5 years before she was deported to Fiji;
·In relation to Issue 5,[4] the changing of her passport, the applicant denies that she changed her passport with the intention to mislead the Department. The applicant changed her passport because her previous passport was expiring and as she had divorced [Mr A] she used her maiden name in the new passport, [name variant 1];
·In relation to Issue 6,[5] other names she has been known by, the applicant admits she is also known, within her family and with maternal relatives, as [Alias A], and within her family as [Alias C], both of which were nicknames from early childhood and [Alias B], her father’s surname. She denies ever being known by any of the other names listed in the delegate’s decision record;
·In relation to Issue 7,[6] bogus documents, the applicant did not have any intention to provide bogus documents or false information. She assumes the sponsor told the Department about the incorrect answers on the visa applications with the intention of having her removed from Australia. The sponsor had an aggressive and controlling nature that was the root of most of their marital problems. He always threatened to withdraw sponsorship for her Partner visa application and made her leave the marital home. She wanted to report the domestic violence to the Police on many occasions but did not because the sponsor claimed that he would lose his job and then could not afford to pay his child maintenance obligations if she reported the abuse;
·With respect to compelling and compassionate reasons[7] which warrant a waiver of PIC 4020,[8] the applicant, in addition to her injury and workers’ compensation situation, emphasised that her sister and her family, who are Australian citizens, would be severely affected if the applicant was required to depart from Australia. She has resided with her [Sister A] and her family since August 2016. Her sister is [an occupation 1] and her work has become overwhelming during the pandemic. Her sister and brother-in-law rely on the emotional and physical support provided by the applicant. This is especially the case with respect to her nephew and her niece, who is only [age] years of age. Commercial childcare has not been an option for the family due to its cost. Her [Brother-in-law A], is [an occupation 2] who works long hours and during most weekends. The applicant, as well as providing care to her sister’s children, cleans their home and does much of the cooking. Without her support [their employers’] staff shortages, due to the pandemic, would be increased.
[3] Referred to as a duplicate Issue 3 in the applicant’s statutory declaration.
[4] Referred to as Issue 4 in the applicant’s statutory declaration.
[5] Referred to as Issue 5 in the applicant’s statutory declaration.
[6] Referred to as Issue 4 in the applicant’s statutory declaration.
[7] The Tribunal is aware the relevant consideration pertains to compelling or compassionate circumstances but in the interests of accuracy has in this instance used the applicant’s wording.
[8] Referred to as PIC 4040 in the applicant’s statutory declaration but the Tribunal, due to the context of the other contents of the statutory declaration has inferred this to be intended to be PIC 4020.
The statement of [Sister A] contains information consistent with that contained in the applicant’s statutory declaration of 24 March 2022. [Sister A] states that:
·She is the [sister] of the applicant, who moved into her family home in August 2016 after the breakdown of her marital relationship as a consequence of domestic violence perpetrated by the applicant’s sponsor. [Sister A] is married with [number] children. [Employment and study details of children specified]. Her youngest child is [age] years old and the applicant is an important person in her and her older siblings’ lives;
·As a person from a Fiji Indian cultural family background significant stigma, pain and suffering affected the applicant as a consequence of the domestic violence and the collapse of her marital relationship;
·The applicant has experienced domestic and family violence in various relationships and situations that she has encountered in her life;
·[Sister A] is employed as [an occupation 1] [with a named employer] and her husband is [an occupation 2] responsible for [specified duties]. Assistance provided by the applicant with regard to childcare and other household tasks was invaluable during the height of the COVID-19 outbreak in Sydney and remains an important source of support in their household.

The statement of [Friend A] states that she has known the applicant for over 10 years and during that time has found her to be an honest, kind-hearted and caring person who is loved by many people in the Sydney community. The applicant has experienced domestic violence from many fronts and problems from the domestic violence have accelerated since the breakdown of her last marriage. As an Australian citizen, [Friend A] believes that the applicant should be granted an opportunity to restart her life and recover from the various forms of domestic violence from accusers who are able to get away with taking advantage of the system.
The statement of [Friend B] states that he has known the applicant to be a supportive and caring person who is closer to him than a blood related sister would be. [Friend B] is aware the applicant is currently facing an immigration related situation which is currently before the Tribunal. [Friend B] has been a victim of domestic violence, not only in Australia and from a very early age in various family compositions. She is a very honest, kind-hearted and caring person of good character who has stood beside [Friend B] and his family.
[Friend B] states that the applicant has been the forefront of many community and cultural events, including fundraising for Australian [disaster] victims at the [named] temple in 2020 and in relation to [a disaster] in Fiji in 2019. See has also been involved with Fiji Day celebrations from 2015 through to 2019 in [specified locations].
A statutory declaration from [a named] psychologist, dated 17 May 2017,[9] declares that the applicant reported, during assessment consultations on 24 April 2017 and 11 May 2017 that she was the victim of domestic violence from the sponsor prior to the breakdown of their marital relationship. Reference to the applicant being subjected to family violence by the sponsor is also contained in a statutory declaration from [a named doctor], dated 26 July 2017.[10] Information as to being a victim of family violence perpetrated by the sponsor is detailed in 2 statutory declarations prepared by the applicant on 10 January 2017 and by her sister, [Sister A], in a declaration also dated 10 January 2017.[11]
[9] Provided to the Department in association with a claim of family violence.
[10] Provided to the Department in association with a claim of family violence.
[11] Provided to the Department in association with a claim of family violence.
Particulars of information put to the applicant pursuant to s 359A of the Act
On 1 April 2022 the Tribunal wrote to the applicant, pursuant to s 359A of the Act, inviting her to comment or respond, in writing by 19 April 2022, to particulars of information arising from the Tribunal’s review of information contained in the Department file and in submissions and other information provided by the applicant, which would provide the reason, or part of the reason for affirming the decision under review. The letter explained why the particulars of information was relevant and of implications flowing from the Tribunal placing weight on the particulars of information.
On 14 April 2022 the Tribunal received a request for an extension of time in which to respond to the s 359A letter. The Tribunal consented to a 14-day extension of time until
3 May 2022, rather than to the 28-day extension of time requested. This was because the Tribunal was not persuaded by the reasons proffered for why an extension of 28 days was required to respond to the particulars of information.
On 3 May 2022 the Tribunal, by way of response to the s 359A letter received:
·A statutory declaration from the applicant dated 29 April 2022;
·A statutory declaration from [Mr C], dated 29 April 2022;
·Copy of emails between [the applicant] and the Department’s partner task force between 29 April 2016 and 3 May 2016;
·Letters, dated 4 April 2022 and 19 January 2020, from [Teacher A], retired head teacher.
The particulars of information put to the applicant, pursuant to s 359A and her response are discussed, where relevant below.
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).
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.
Was inaccurate or incorrect information entered on forms associated with the visa application?
To Question 61 on the 47SP form, which asks ‘Have you been married to a person other than your current sponsor (including if you are still legally married to that person)?’ – the response ‘No’ was entered. The applicant has conceded that she was twice married before her marriage to the sponsor [in] November 2014.[12] She has conceded that she was first married in Fiji to [Mr A] in July 1990, with that marriage ending by divorce in October 1993. This was followed by a second marriage in [Country 2], where she was married to [Mr B] from [year] to 2005.
[12] Applicant refers to the previous marriages in her statutory declaration, dated 24 March 2022, detail as to the date of her marriage to the sponsor is contained in the Commonwealth Certificate of Marriage and NSW Births, Deaths and Marriages Marriage Certificate provided to the Department.
To Question 74 on the 47SP form, which asks ‘In which countries have you lived for 12 months (in total) or more during the last 10 years?[13] - The response ‘N/A’ was entered, with no other information provided in response to this question. To Question 18 on ‘Form 80 - Personal particulars for assessment including character assessment’, signed by the applicant on 9 February 2016 (Form 80) the applicant answered ‘No’ to the question ‘Have you travelled to any other country other than Australia in the last 10 years?’ When interviewed by a Departmental official in January 2018 the applicant stated that she had never been to any country except Fiji and Australia. The applicant has now conceded that she has travelled to and spent time in [Country 1] and [Country 2]. Information on the Department file indicates that the applicant departed [Country 1] in July 1993. She has declared the incidents that resulted in her arrest occurred in either March 2005 or March 2006 and that they were followed by a police investigation court case and imprisonment for a 5-year period before her return to Fiji. These claims are broadly consistent with information on the Department file, which indicates the applicant departed [Country 2] in 2013.
[13] The Tribunal notes that a 10-year period prior to when the forms were provided to the Department commenced in November 2004.
The applicant answered ‘No’ to the query within Question 72 on the 47SP form, which in relation to Character asks ‘Have you, or any other person included in this application, ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?’ The applicant answered ‘No’ to the query within Question 72 on the 47SP form, which asks ‘Have you, or any other person included in this application, been removed or deported from any country (including Australia)?’ The applicant answered ‘No’ at Question 36 on Form 80, which asks ‘Have you, or any other person included in this application, ever:
1. been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?
2. been associated with a person, group or organisation that has been /is involved in criminal conduct?
3. been removed, deported or excluded from any country (including Australia)?
The applicant in submissions and declarations provided to the Tribunal has conceded that she was deported from both [Country 1] [and Country 2] and was also in [Country 2] convicted of a number of criminal offences and sentenced to [a period] in prison, of which she served 5 years before being deported to Fiji. In previous submissions provided to the Department on 30 April 2018, whilst acknowledging that she was deported from both [Country 1] and [Country 2], the applicant denied that she had a history of convictions for marriage fraud, burglary, vehicle theft or robbery. The applicant, whilst acknowledging the criminal convictions in [Country 2], ‘denies all allegations’[14] and provides information as to the circumstances which resulted in the criminal convictions in relation to which she claims innocence. The Tribunal notes that the issue of innocence or guilt is not of relevance in relation whether question 72 on the 47SP form and question 36 on Form 80 were answered correctly or not.
[14] Submissions dated 25 March 2022, of [Solicitors 1].
To Question 14 on the 47SP form, which asks for details regarding ‘Other names the applicant is or has been known by (including name and birth, previous married names, aliases)’ – no response - the field left blank and to Question 4 on Form 80, which asks ‘Have you been known by any other name(s)? Include: name at birth; name before after marriage; adoptive or foster name; alias or pseudonym; cultural or tribal name or clan/subclan name; preferred name; other spellings of names’- the applicant answered ‘No’. The delegate noted that information available to the Department indicated the applicant had also been known as [name variant 2] and [name variant 3]. When interviewed by a Departmental official in January 2018 the applicant stated that she had only ever used her current name or her current married name ([specified]) and that she had not been known by any other names. The applicant has now conceded that she has been known as [name variant 2] and also used her father’s surname, [Alias B]. Further to this she concedes that within her family and by maternal relatives she is also at times referred to as [Alias C] or [Alias A].
To Question 11 on Form 80, which asks ‘Have you ever had any previous passports or travel documents (including expired, lost or stolen documents)?’ – the applicant answered ‘No’. When interviewed by a Departmental official in January 2018 the applicant stated that the passport she held at that time was the only passport that she had ever held. The applicant concedes that she held a previous passport in the name of [name variant 2], but that as this was due to expire and she was no longer married to [Mr A], she got the new passport under her maiden name, [name variant 1].
The Tribunal’s findings in relation to whether inaccurate or incorrect information was entered on forms associated with the visa application
Upon consideration of the available information the Tribunal finds the following incorrect or inaccurate responses were provided by the applicant in association with her Partner visa applications lodged on 19 November 2014:
In relation to the 47SP form signed by the applicant on 13 November 2014
a)   Question 14, which asks for details regarding ‘Other names the applicant is or has been known by (including name and birth, previous married names, aliases)’ – a nil response, the field was left blank;
b)   Question 61, which asks ‘Have you been married to a person other than your current sponsor (including if you are still legally married to that person)? – the answer provided is ‘No’;
c)   Question 72, which in relation to Character asks for responses to a range of questions, including:
-‘Have you, or any other person included in this application, ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?’ – the answer provided is ‘No’;
-‘Have you, or any other person included in this application, ever been removed or deported from any country (including Australia)?’ – the answer provided is ‘No’;
d)   Question 74, which asks ‘In which countries have you lived for 12 months (in total) or more during the last 10 years? - The response is ‘N/A’ with no other information provided in response to this question;[15]
[15] The Tribunal finds this response was incorrect as it is apparent the applicant was in [Country 2] until or around 2010, this being around a 5 year period following the incident which she declared resulted in her serving 5 years in a [Country 2] prison.
e)   Question 72, which in relation to Character asks for responses to a range of questions, including:
-‘Have you, or any other person included in this application, ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?’ – the answer provided is ‘No’;
-‘Have you, or any other person included in this application, ever been removed or deported from any country (including Australia)?’ – the answer provided is ‘No’.
In relation to Form 80 – Personal particulars for assessment including character assessment, signed by the applicant on 9 February 2016
a)Question 4 – ‘Have you been known by any other name(s)? Include: name at birth; name before after marriage; adoptive or foster name; alias or pseudonym; cultural or tribal name or clan/subclan name; preferred name; other spellings of names’ - the answer provided was ‘No’;
b)Question 11, which asks ‘Have you ever had any previous passports or travel documents (including expired, lost or stolen documents)? – the answer provided was ‘No’.
c)Question 18, which asks the question ‘Have you travelled to any other country other than Australia in the last 10 years’ – The answer provided was ‘No’;[16]
d)Question 36 ‘Have you, or any other person included in this application, ever’:
-‘Been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?’ – the answer provided was ‘No’
-‘Been associated with a person, group or organisation that has been /is involved in criminal conduct?’ – the answer provided was ‘No’
-‘Been removed, deported or excluded from any country (including Australia)?’ – the answer provided was ‘No’
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?
[16] The Tribunal finds this response was incorrect as it is apparent the applicant was in [Country 2] until or around 2010, this being around a 5 year period following the incident which she declared resulted in her serving 5 years in a [Country 2] prison.
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.
The applicant has submitted that she was unaware of any bogus documents being provided in association with the visa application and hypothesised that if they were to have been, it would have been done by the sponsor. The Tribunal is not aware of evidence of bogus documents in this matter and is not of the view that the completed 47SP and 80 Forms containing incorrect or inaccurate information fit the definition of a bogus document provided for in s 5 of the Act. The issue is whether there is evidence of false and misleading information in a material particular being provided in association with the Partner visa application.

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.
The applicant submits that whilst incorrect and inaccurate information was provided on forms associated with the Partner visa application, there was no element of fraud or deception on the part of the applicant to provide the alleged false or misleading information.[17] In support of this submission the applicant contends that her ex-husband and sponsor for the Partner visas had full control over the visa application process[18] and she just signed forms where he instructed her to do so.[19] The applicant contends that she was a victim of domestic and family violence and in essence under the coercive control of the sponsor and as such, she is not responsible for the way she completed forms associated with the visa application and dishonest or inaccurate answers given by her during a Departmental interview in January 2018. For the following reasons, the Tribunal is not persuaded by these contentions.
[17] Submissions dated 25 March 2022, of [Solicitors 1].
[18] Submissions dated 25 March 2022, of [Solicitors 1].
[19] Applicant statutory declaration, dated 9 March 2022
As an initial consideration, the Tribunal is satisfied the incorrect and inaccurate information, which misrepresented the applicant’s relationship, migration and criminal history was false at the time it was given in November 2014. This is because the incorrect and inaccurate information entered on to forms associated with the residential Partner visa application was in response to questions about circumstances prior to the time it was given, that is questions seeking information about the applicant’s circumstances prior to the time of application.
The Tribunal is satisfied that there are visa criteria upon which the allegedly false information could materially bear, as the incorrect and inaccurate information is relevant to consideration of criteria such as character requirements and relationship criteria, such as cl 801.221, which are associated with the residential Partner visa.
The 47SP form and Form 80 were lodged with the Department in association with the November 2014 visa application and subsequently considered by an office with delegated authority from the Immigration Minister. As such, the Tribunal is satisfied that the information was given to a person when the person was the performer of a statutory role in relation to assessing an applicant’s entitlement to be granted a visa.
As to the applicant’s claims that the sponsor had complete control over the visa application, for the requirements in cl 4020(1) to be engaged, it is not necessary to show knowing complicity by the visa applicant.[20] The words ‘given or caused to be given’ do not import a mental element such that an applicant needs to know that the documents or information they are providing are defective in the relevant sense.[21] All that is necessary is that the information provided was purposefully false.[22] Where false or misleading information or a bogus document is given by an agent, it is neither necessary for an applicant to be aware that false information has been given by the agent, nor that the applicant gave instructions to provide false information to the agent in order to be responsible for false or misleading information being given.
[20] Trivedi v MIBP (2014) 220 FCR 169 at [43]–[44].
[21] Vyas v MIAC [2012] FMCA 92 at [68].
[22] Trivedi v MIBP (2014) 220 FCR 169.
In the circumstances of this case, notwithstanding the applicant’s claim that her relationship with the sponsor was marked by domestic violence and her actions in relation to the visa application were affected by this and past experiences of abuse and violence, the Tribunal is satisfied that the applicant was aware of the sponsor’s involvement in the visa application and that she, even if it was at his behest, knowingly and purposefully provided false information about her relationship, migration and criminal history.
The Tribunal has taken the applicant’s claim to have signed forms where the sponsor instructed her to imply she otherwise had minimal involvement with the preparation of the 47SP form and Form 80 and the visa application process. Taken at face value this would reflect a process whereby the applicant was aware of and accepting of the sponsor taking the primary role in applying for the visa. In the view of the Tribunal this circumstance is encompassed by the term ‘given or caused to be given’, with her reliance on the sponsor being not dissimilar to that discussed in Singh v MIBP [2018] FCAFC 52 at [152] where the Court held that it was reasonably open to the Tribunal in that matter to find that the applicant had caused a bogus document to be given to the Department because he was content to have his brother-in-law act as his intermediary,[23] and that in such circumstances it is not necessary to determine whether or not the visa applicant had knowledge of or was complicit in the fraudulent conduct.
[23] Italics added.
However, a review of the available information does not in the view of the Tribunal support the applicant’s claim as to the sponsor having full control over the information provided in association with the visa application, including that placed on the 47SP and 80 forms. Information provided by the applicant describes discussions with the sponsor as to whether she should, in the visa application, disclose her previous marriages and her past residence in [Country 1] and [Country 2]. She describes, in agreeing to misrepresent her relationship, migration and criminal history, being influenced by the potential adverse impacts this could have on the sponsor’s finances. In the view of the Tribunal this shows active consideration and reflection by the applicant leading to an informed choice, which does not support a contention she was minimally and passively involved in the visa application.
The extent of interaction between the applicant and the Department, independent of the sponsor, in relation to the visa application is in the view of the Tribunal not consistent with the contention that the sponsor had full control over the application. The applicant was invited to comment on this factor in the letter sent to her pursuant to s 359A of the Act, where it was highlighted that there were 8 phone calls and 9 emails between the applicant and Departmental officers in association with the visa application, where the sponsor was not involved. In response to this information the applicant indicated that she initiated some phone enquiries as she and the sponsor were eager for her to clarify her work rights and that she emailed other information to the Department, as unlike in the marital home, she had access to a computer at her workplace which she could use for this purpose.
With respect to emails sent by her to the Department on 11 March 2016 the applicant, in her response to the s 359A letter, indicated that at this time she gathered and sent evidence of the parties’ relationship to the Department, including taxation records and her driver’s licence. With regard to emails sent on 12 April 2016, 28 April 2016, 29 April 2016 and 4 May 2016, the applicant’s s 359A response indicated that these were to do with medical assessments that she was asked to undergo and in relation to seeking extensions of time to produce a Penal Certificate from Fiji and a Passport, which she claimed was misplaced.
With respect to the case notes on the Department’s file associated with the processing of her visa application, the Tribunal finds that a clear majority of the recorded interactions with the Department were to the applicant or initiated by her and undertaken without involvement of the sponsor. The extent and nature of these interactions and the applicant’s explanation for them do not support the contention that the sponsor controlled the visa application process and that the applicant’s involvement was minimal.
Further to this and contrary to the claim that the sponsor completed her visa application, the Form 47SP ‘Application for migration to Australia by a partner’, signed by the applicant and lodged with the Department on 17 November 2014, at Part Q, Question 78 identified a [Mr C] as the person assisting with the application. This was a further particular of information put to the applicant for her comment pursuant to s 359A. In response the applicant provided the Tribunal with a statutory declaration from [Mr C], in which he declares that he has known the applicant since she married the sponsor and the sponsor for a longer period that that. [Mr C] declared, in relation to his name being mentioned as a person assisting with the application in the 47SP form, the applicant and sponsor attended his premises as he is a Justice of the Peace in the State of NSW and they may have required certification of their documents. [Mr C] declared that as the sponsor knew him well the parties were comfortable in having his assistance to complete the form in his office and put his name as the person assisting. [Mr C] declared that the applicant and sponsor may have asked him a few things but that the majority of the questions were straight forward as the sponsor was in constant consultation with the applicant during the completion of the form. In the view of the Tribunal the declarations of [Mr C] provide a plausible explanation of his role in relation to the Partner visa application. The Tribunal is not however persuaded the declarations of [Mr C] support the applicant’s contention that the sponsor had full control over the visa application process and that her involvement was minimal and under the domineering influence of the sponsor.
With respect to the claim that the applicant was a victim of family violence perpetrated by the sponsor during the period they were in relationship, the Tribunal notes that the applicant submitted evidence for consideration of a non-judicial claim of family violence after the sponsor had advised the Department that the parties’ relationship had ceased and that he withdrew sponsorship for her Partner visa. Consideration as to whether the family violence claim is substantiated for the purpose of ascertaining whether there was a circumstance where an exception to the sponsorship requirement is not the focus of the current review and the Tribunal makes no formal findings with respect to this issue. However, a review of the evidence provided regarding the family violence indicates that the applicant claims that the sponsor only became aggressive and critical of her after she commenced working at [Employer 2] in April 2016 and that prior to that the parties had a good relationship.[24] Her sister, [Sister A] corroborated this claim, declaring that ‘Sometime after May 2016 [the applicant] started telling me about [the sponsor’s] erratic behaviour…[25]’ There is also no indication that there is anything but happiness in the parties’ relationship in a written statement prepared in April 2016, in which she reports the parties communicate about their daily routines and respect each other’s opinions.[26] In the view of the Tribunal there is insufficient evidence to support a claim that the applicant’s relationship was affected by family violence perpetrated by the sponsor around the time forms containing incorrect or inaccurate information were provided to the Department in association with the visa application. Indeed, the declarations and statements of the applicant and those provided by her sister and people providing witness support to the relationship[27] suggest otherwise.
[24] Applicant statutory declaration dated 10 January 2017.
[25] Statutory declaration of [Sister A] dated 10 January 2017.
[26] Applicant relationship statement dated 2 April 2016.
[27] [List of witnesses provided].
The evidence which is before the Tribunal satisfies me that the applicant took an active role in the preparation and subsequent processing of her Partner visa application and that assistance provided to her by the sponsor with regard to the application was not imposed on her, and responses provided by her were not due to coercion, or otherwise influenced by the dynamics of domestic or family violence. To the extent that purposefully untrue responses on the 47SP and 80 Forms were influenced by the sponsor’s views, the Tribunal is not persuaded this mitigates the applicant’s role in the provision of the purposefully untrue and in the view of the Tribunal, deceptive information. To the extent that the 47SP and 80 Forms may have been filled out by someone other than the applicant, namely the sponsor or Mr [Mr C], for the reasons discussed in Singh v MIBP [2015] FCCA 2776,[28] the Tribunal finds this does not mitigate the applicant’s role in the provision of the false and misleading information.
Assessment of whether the incorrect and inaccurate information was false and misleading in a material particular
[28] In , t[2015] FCCA 2776, the Court found at [56] that ‘[i]t is consistent with the conclusions of Buchanan J in Trivedi that the provisions of s 98 of the Act should apply to PIC 4020 and that an applicant should be deemed to have completed an application form where he or she causes a form to be filled out or his/her behalf’.
The Tribunal finds that the incorrect answers entered on to the 47SP and 80 Forms, as identified in this decision, were purposely untrue at the time they were given in November 2014 and that there was an element of deception by the applicant in misrepresenting elements of her relationship, migration and criminal history. Further to this the Tribunal finds that the information was relevant to consideration of required criteria, such as character and relationship criteria associated with a Residential Partner visa and as a consequence the incorrect and inaccurate information was false and misleading in a material particular.
The Tribunal finds that there is evidence the applicant has given, or caused to be given, information that is false and misleading in a material particular in relation to the application for the visa.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) 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.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
With respect to whether there are compelling circumstances that affect the interests of Australia, the Tribunal accepts the applicant may have made a contribution to Australia, particularly during the acute phases of the COVID-19 pandemic in 2020 and 2021, through taking some of the strain off her sister and brother-in-law who were at that time and are continuing to perform important roles in Australian society. The Tribunal acknowledges this may have at that time enabled her sister and brother-in-law to perform their work roles at a reduced level of stress than may otherwise have been the case. The Tribunal notes that the level of physical assistance provided by the applicant would appear to be constrained by the level of impairment from her workers’ compensation related injury which is reported in the documents provided by her. Notwithstanding this, the Tribunal acknowledges that assistance from the applicant could be of ongoing benefit to her sister and brother-in-law and by extension influence their respective contributions to Australia.
The Tribunal also accepts that the applicant’s community activities have been of benefit to the Australian community, through her involvement with fundraising for [disaster] victims at the [named] temple she frequents and also in activities within the local Fiji community.[29] A retired teacher, [Teacher A], who taught the applicant when she attended secondary school in Fiji, also attests to the applicant’s good character and that she follows a family tradition of making a positive contribution to the community.
[29] Information regarding the applicant’s community involvement provided in the statement of [Friend B]. [He] indicated he was available to testify before the Tribunal however, in the circumstances where his statement is available for the Tribunal consider and the applicant requested a decision be made on the papers, the Tribunal did not deem it necessary to require him to give evidence in person.
In relation to the applicant’s workers’ compensation case, the Tribunal finds that the interests of Australia are not enlivened by a circumstance where a national of Fiji returns to their home country whilst having a yet to be settled workers’ compensation claim in NSW. It is not apparent to the Tribunal from its review of the available evidence, including submissions and declarations from the applicant, why the applicant would be unable to pursue her claim from offshore and if need be, instruct a solicitor to represent her interests, such as seeking reimbursement of injury related treatment or rehabilitation expenses. In any event, the Tribunal is not persuaded the interests of Australia would be affected by any difficulty the applicant may experience in relation to this circumstance.
The Tribunal is not satisfied that the impact from the factors described above is sufficient to constitute a compelling circumstance or circumstances affecting the interests of Australia and as such the Tribunal is not persuaded these circumstances warrant consideration of the discretion to waive the requirements of PIC 4020(1) and grant the visa.
With respect to whether there are 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, the Tribunal acknowledges the evidence as to the importance of support, practical, emotional and otherwise, provided to the applicant’s sister and her family. The Tribunal accepts that the applicant has established bonds with her [younger relatives]. In relation to [those specified], the Tribunal is satisfied that the evidence suggests that they are both well-functioning young adults, with [employment and study details specified]. As to her [age]-year-old niece, the Tribunal accepts the applicant may be an important person in her niece’s life. The evidence does however demonstrate that the applicant’s niece is in an intact family unit with both her mother and father present in her life. There is no evidence before the Tribunal which would establish the applicant’s niece suffers from physical or psychological conditions such that care provided to her, which is unavailable from other sources but from the applicant, is required. The Tribunal accepts that her [specified relatives] and other Australian relatives may experience a degree of distress and inconvenience if the applicant is not granted the visa and has to depart Australia. The Tribunal is not however of the view that the impact from this factor is sufficient to constitute a compassionate or compelling circumstance which would warrant the exercise of the discretion to grant the visa.

The Tribunal acknowledges the evidence as to the applicant’s experience of domestic and family violence at different points in her life, including in her relationship with the sponsor. The acknowledges the profound sequelae of traumatic experience and the evidence of the pervasive adverse impact it has had on the applicant. As the applicant is not an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, this is unfortunately not a factor encompassed by the waiver provisions within PIC 4020(4).
For similar reasons, difficulties arising for the applicant as a consequence of her parents’ home in Fiji being destroyed by fire, or from her having potential difficulty accessing treatment or rehabilitation services in Fiji in relation to her workers’ compensation injuries are circumstances which whilst impacting on the applicant do not fall within the scope of PIC 4020(4).
The Tribunal has considered the available evidence, including declarations provided by the applicant, her sister, brother-in-law and other sources, but is not satisfied this evidence establishes that there are compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen which warrant consideration of the discretion to waive the requirements of PIC 4020(1) and grant the visa.
Therefore, the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 801.226.
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 Barker
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.
…

[2022] AATA 2227

6 June 2022

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Immigration

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