1820973 (Migration)

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.