1900688 (Migration)

[2021] AATA 1812

1900688 (Migration) [2021] AATA 1812 (30 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1900688

MEMBER:Helena Claringbold

DATE:30 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

·Public Interest Criterion 4020(1) for the purposes of cl.820.226 of Schedule 4 to the Regulations.

Statement made on 02 March 2021 at 2:34 pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – false or misleading information – previous relationships – applicant did not obtain divorce from previous spouse – validity of the parties’ marriage – threats from previous migration agent – compassionate or compelling circumstances that affect the interests of an Australian citizen – sponsor’s medical conditions – decision under review remitted           

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 18
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 820.211, 820.226; Schedule 4, Public Interest Criterion 4020; rr 1.03, 1.15

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
Trivedi v MIBP [2014] FCAFC 42

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 28 December 2014, [name], the applicant, applied for a Partner (Temporary) (Class UK) visa. The application was based on his spousal relationship with [name], the sponsor. [The sponsor] is also known as [several specified names].

2. On 31 December 2018, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant met public interest criterion (PIC) 4020 of Schedule 4 to the Regulations. Therefore, the applicant did not meet cl.820.226 of Schedule 2 of the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).

3. On 10 January 2019, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

4. On 16 November 2020, the Tribunal wrote to the applicant and invited him to a Tribunal hearing on 8 December 2020. On 1 December 2020, the applicant’s migration agent (the migration agent) wrote to the Tribunal and requested an adjournment of the Tribunal hearing set down for 8 December 2020 until February 2021 or later. He advised of the following. The sponsor had recent health concerns and had been missing from home on two occasions. She was found disoriented at a bus stop and was taken to hospital. She was sent home by police and advised to consult her medical professionals. Dr L her general practitioner referred her to a neurologist. He advised that in cases of sudden stress and memory fatigue a two to three months recovery period is required. On 19 November 2020, Dr K advised the sponsor to remain at home for the next few months until her memory loss and wandering episodes were investigated. She remains undiagnosed and is in a fragile state. The demands on the applicant who is the sponsor’s carer and the sponsor’s fragile state meant that the migration agent had been unable to discuss the review with the applicant and the sponsor. If the adjournment request requires the matter be removed from the priority processing, the family are willing to remove their application for priority, to ensure that the sponsor is of stable mental health prior to the hearing. The migration agent attached a letter from Dr L dated 26 November 2020. Dr L stated that the sponsor experienced recurrent memory loss and is being investigated by a neurologist. She has issues with depression, hip and knee pain and is listed for an operation. Due to her mental and physical health issues she is unable to attend the Tribunal hearing of 8 December 2020 and seeks a postponement until after February 2021. 

5. On 2 December 2020, the Tribunal wrote to the applicant and advised that the request for a postponement of the Tribunal hearing set down for 8 December 2020 had been granted.  He was advised of the following. Further postponement of the Tribunal hearing would not be granted on medical grounds unless he provided the Tribunal with a full report from his treating doctor indicating why he is unable to attend a hearing. A brief certificate stating that the sponsor is having issues with recurrent attacks of memory loss and is currently being seen by a neurologist and has issues with depression and is on a waiting list for an operation and because of her illness is unfit to attend a Tribunal hearing will not be sufficient. The doctor preparing the report should comply with the Tribunal’s requirements for expert reports and should be aware that they may be summoned to appear before the Tribunal to give evidence in relation to the sponsor’s health.

6. On 10 December 2020, the Tribunal wrote to the applicant and asked that he provide the Tribunal with a medical report for the sponsor from her psychiatrist, psychologist or medical practitioner or specialist and evidence that she has the competency to fully participate in a Tribunal hearing.

7. On 6 January 2021, the migration agent provided the Tribunal with a letter dated 4 January 2021 for Dr L.  He stated that despite the sponsor’s health crisis she wanted to appear before the Tribunal and would be seeing Dr K the next day. In a letter dated 5 January 2021, Dr K stated the following. The sponsor attended an appointment on 5 January 2021. She is currently stable with significant improvement in her mental health.  She is competent to attend a scheduled Tribunal hearing.  However, the sponsor expressed a desire to have the hearing be delayed for six weeks and citied various medical health issues.

8. On 11 January 2021, the Tribunal wrote to the applicant and invited him to a hearing on 2 March 2021 by video conference.  On 26 February 2021 at 3:26 pm the migration agent wrote to the Tribunal and advised that the applicant requested an in-person hearing. On 1 March 2021, the Tribunal wrote to the applicant.  The Tribunal incorrectly stated that the request for a postponement had been granted. It should have stated that the request for an in-person hearing had been granted.  However, the letter went on to provide details of an in- person hearing on 2 March 2021 to begin at 8:30 am. The Tribunal advised that to allow the Tribunal hearing to commence on time arrival between 8:10 am and 8:15 am was necessary.  On 1 March 2021, the migration agent sent to the Tribunal the response to the Tribunal hearing invitation. On 2 March 2021 at 07:24 am the Tribunal received a large submission from the current migration agent. The Tribunal hearing commenced at 8:42 am.  The migration agent arrived late for the Tribunal hearing.  On 2 March 2021 at 9:46 am, while the Tribunal hearing was in progress, the Tribunal received a submission from the migration agent.

9. The Tribunal discussed with the migration agent the Administrative Appeals Tribunal Practice Directions given under section 18B of the Administrative Appeals Tribunal Act 1975. In particular s.5.1 which states as follows:

   ‘Giving submissions and evidence to us

   3.1You are expected to:

   (a)  provide, on lodgement of an application for review, all relevant evidence and a detailed submission setting out your claims, or, if this is not possible (where, for example, a representative is appointed after the application is lodged), to give us all relevant material and submissions no later than 14 days from the date the application was lodged or the date the representative was appointed, whichever is the later day

   (b)  lodge any additional submissions or documentary information, which were not earlier available, no later than seven days (or no later than one day for detention cases) before any scheduled hearing

   (c)   identify clearly any changes to previous claims or any new or additional claims in any submission

   (d)  make any post-hearing submissions within the period determined by us.’

10. The migration agent stated that he had difficulty meeting with the applicant and the sponsor particularly considering the sponsor’s health and delayed the provision of information to the Tribunal.  He stated that he had only received the invitation to the Tribunal hearing on 1 March 2021 and it had been undecided whether the Tribunal hearing would be via video or in person.  The Tribunal does not accept this argument.  The application for review was lodged with the Tribunal on 10 January 2019. On 28 August 2020, the migration agent wrote to the Tribunal and advised that he had been appointed as the applicant’s migration agent.  He provided an appointment of representative form signed by the applicant and dated 17 August 2020. The Tribunal wrote to the applicant on 16 November 2020 inviting him to a Tribunal hearing on 1 December 2020.   A requested postponement was granted and the applicant appeared before the Tribunal on 2 March 2021. It has been two years since the lodgement of the review application and six-and-a-half months since the migration agent was appointed and three-and-a-half months since the applicant was invited to a Tribunal hearing.  The Tribunal is of the view, notwithstanding the sponsor’s health, that the applicant and the migration agent have been provided ample time to have submitted information to the Tribunal in keeping with the Administrative Appeals Tribunal Practice Directions.

11. The applicant appeared before the Tribunal on 2 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.  The applicant was represented in relation to the review by his registered migration agent.

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The Tribunal has taken into consideration, individually and completely, the evidence in the Department of Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

    ISSUE

14. The issue in the present case is whether the applicant meets the Public Interest Criterion (PIC) 4020 at the time of decision. If not, should the requirements of PIC 4020 be waived?

    BACKGROUND ON THE EVIDENCE

15. The applicant was born in [year] in [a town in] Ghana. His father is deceased. His mother and [siblings] live in Ghana. He has one sister who died about two years ago. [In] July 2014, he entered Australia as a holder of a [visitor] visa. The information about the applicant’s previous partner relationships and child is given throughout this decision record.

16. The sponsor was born in [year] in Sydney, Australia. Her parents and [a sibling] live in Australia. From [year] until 2011, she was in a partner relationship with Mr C. There are [number] children from this relationship.

17. On 20 September 2014, the parties met through a mutual friend in [Sydney]. On 27 September 2014, the visa applicant moved into the sponsor’s home. [In] December 2014, the parties married at [a location in] Sydney.

18. For clarity, the people who provided assistance to the applicant relating to the partner visa application are as follow: Mr M a friend of the parties; [name], the first migration agent; [name], the second migration agent.  Assistance is now being given by [name], the applicant’s current migration agent, referred to in this decision record as the migration agent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Public interest criterion 4020

19. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.820.226 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).

20. 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). Public interest criterion 4020 is extracted in the attachment to this decision.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?

21. 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.

22. 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.

23. 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.

24. On the visa application form under the hearing ‘Previous relationships’, which asked ‘Has the applicant been in any previous relationships with persons other than the sponsor?’  the applicant declared No.

25. On the visa application form under the heading ‘Sponsor’s previous relationships’, which asked ‘Has the sponsor been in any previous relationships with persons other than the applicant?’ the applicant declared No.

26. The delegate’s decision record informed the Tribunal of the following information. The Department received information that the applicant had a prior marriage in [Country 1] ([Partner A]) and had not obtained a divorce from that marriage.  The information indicated that the applicant married in [Country 1] in January 2010. The applicant did not disclose this marriage to the Department. At the time of the delegate’s decision (31 December 2018) the applicant had not provided any specific details about his marriage in [Country 1], including the date of the marriage or the name of his previous spouse.

27. In November 2014, the applicant provided a copy of a ‘Dissolution of Customary Marriage’ document.  This recorded that [in] December 2013, the applicant married [Partner B], in Ghana and that the marriage was dissolved [in] October 2014.

28. In June 2016, the applicant provided a ‘Notification of incorrect answer(s) Form 0123. At question 13 ‘List details of the information provided which is incorrect and provide the correct information’. At point 1, ‘Information that was incorrect’, the applicant declared ‘divorce certificate’.  At point 2, ‘Correct details’, the applicant declared, ‘I stated and submitted the marriage certificate when I lodged my [Visitor visa] application.  I believed it is in the system that’s why I submitted the divorce certificate’.

29. In July 2016, the applicant stated the following. He had been married in [Country 1]. He did not disclose the previous marriage because he had given the marriage certificate to Mr M. He could not remember the date of the marriage or the other details required to complete the online visa application form. They couldn’t leave any space blank on the visa application form because they could not progress to the next question. He received advice that as his previous wife had a psychological problem, it may be difficult to obtain a divorce. This does not negate the fact that he should have declared it (the marriage) but he didn’t have the details. His lawyer in [Country 1] stated that because of his previous wife’s psychological problems he could marry (again) without being divorced.

30. In a third-party statutory declaration dated August 2016, [name] stated the following.  He is a community leader. The applicant asked for his assistance to retrieve his documents from Mr M. He tried to resolve the matter but Mr M refused to return the documents including the marriage certificate. Mr M vowed to see that the applicant was deported to Ghana and would report him to the Department.

31. In a statutory declaration dated August 2016, the sponsor stated the following. The applicant didn’t lie. He told her about his marriage in [Country 1]. His spouse in [Country 1] was not of sound mind and suffered from substance abuse and the marriage broke down. The applicant told her about his Ghanaian marriage and divorce. Mr M asked for $[amount] (to assist with the visa application) which she refused. He said that he knew someone in the Department and would have the applicant removed from Australia. They reported this to the [local] Police who called Mr M, who told them that he didn’t have any (of the applicant’s) documents.

32. In February 2017, the Department wrote to the applicant and invited him to comment on the information as follows. He married in [Country 1] in 2010.  Neither the applicant nor the sponsor declared the marriage during the processing of the visa application. There is no evidence that the applicant divorced the person he married in [Country 1].  This raises concerns about the validity of the parties’ marriage and the veracity of the information in the visa application.

33. In March 2017, the first migration agent stated the following. The applicant contends that he provided false and misleading information to the Department.  This stemmed from his statutory declaration confirming that he did marry in [Country 1]. The parties paid $[amount] to a person (Mr M) to lodge a partner visa application for them. They gave him all the relevant papers including the applicant’s [Country 1] marriage certificate.  Later they reneged on their agreement (with Mr M) because they found that he was not qualified to lodge the visa application. Mr M refused to give the applicant’s information back to him. This does not negate the fact that they were still bound to inform the Department, but naively did not inform the Department. ‘He told me briefly that he had married in [Country 1], when we were filling the online visa application but could not remember the exact date of the marriage. If he thinks he can get the marriage certificate we can write ‘not married’ but we must notify the Department with the correct information as soon as possible.’ This was an innocent mistake with no intent to provide the Department with misleading information. He referred to cases where courts allowed persons to sponsor their partners for a spouse visa even though they had not legally divorced their previous partners.

1. In May 2017, the second migration agent stated the following. The first migration agent conceded that the applicant advised him that he was previously married but could not provide the details of the marriage. Even though the first migration agent asserted that there was no previous relationship (on the visa application form) a copy of a Ghanaian divorce certificate from [Partner B], the second wife was provided. The first migration agent must be ascribed some level of culpability for providing incorrect information. The applicant advised the second migration agent when he arrived in Australia he was married and had a child. The answers provided on the electronic visa application form were obviously incorrect. The applicant asserts that he didn’t convey false and misleading information. The first migration agent, while denying the previous relationship, provided other information detailing that there were other relationships. This supports the integrity of the applicant and there was no malice on the part of the applicant to deceive. The issue arises whether the PIC 4020 issue can be raised in circumstances where there may be a validity question as to the character of the documents filed at the time. He is mindful of the declarations presented at pages 18 and 19 of the electronic form.

2. In a statutory declaration dated May 2017, the applicant stated the following. When the visa application form was completed, he told the first migration agent about his first wife in [Country 1]. He did not have the marriage certificate to provide the details of the marriage. The first migration agent advised that he could be considered not married and could present an answer that he had not been in previous relationships. He would not have provided the answer that was shown on page 15 of the form had he not received that advice. He did not know nor could he know that such advice was incorrect at the relevant time.

3. The Tribunal discussed with the applicant the non-disclosure of his marriage to [Partner A]  in [Country 1] as detailed in the delegate’s decision record and his other marriage to [Partner B] as declared by the sponsor in the sponsorship form.  The Tribunal told the applicant that he had not disclosed his partner relationship with [Partner A] or [Partner B] on the visa application form and although he declared having a daughter Miss T born in [year], he did not disclose her as a dependent family member on the visa application form.

4. The applicant told the Tribunal the following. He lived in [Country 1] for four-and-a-half years but he was not a citizen or permanent resident of [Country 1].  His family were happy that he married [a Country 1] woman. However, the marriage didn’t work and he had to leave. He travelled to Ghana in 2019 for [period] and one other time for about three weeks. A friend (Mr M) initially assisted with the visa application.  However, when he asked for $[amount], the applicant withdrew. Mr M told the applicant that he knew someone in the Department and he would report the applicant’s marriage in [Country 1] to the Department. The applicant was then assisted by the first migration agent, who messed things up. On the advice of the first migration agent, the applicant did not declare his marriage to [Partner A] or his daughter as a dependent family member. He was advised that he could adjust the information later. The visa application form was completed by the first migration agent. The applicant thought that the first migration agent knew everything.  However, later the first migration agent admitted his error. The applicant did not lodge a complaint about the first migration agent.

5. The migration agent told the Tribunal the following. The parties are in a genuine relationship. They believe that they were given incorrect information.  Mr M worked with the first migration agent to obtain a financial benefit. Everyone knew about the applicant’s relationships and the pregnancy.  The applicant understood that his marriage to [Partner A]  was not legal. He is in the process of obtaining a divorce from her and a hearing set down for February 2021 was postponed to April 2021.

6. The Tribunal put information to the applicant under s.359AA of the Act. The relevance and consequence of the information was explained to the applicant.  He was invited to comment on or respond to the information and told that he could seek additional time to do so. The applicant requested and was granted additional time to comment on or respond. The information is as follows:

   On the visa application form, in response to the question relating to the applicant’s previous relationship which asked, ‘Has the applicant been in any previous relationships with persons other than the sponsor’, the applicant declared ‘No’.

   In October 2014, the Department received information as follows:

   ·The applicant was married to two other persons other than the sponsor. 

   ·[In] January 2010 the applicant married [Partner A] in [a location in Country 1]; and

   [In] December 2013, the applicant married [Partner B] in Accra, Ghana.

   ·The applicant provided the marriage certificates relating to his marriage to [Partner A] and [Partner B] to a person for safe keeping and to ensure that the sponsor would not access them.

   ·Although the applicant provided a dissolution of marriage document relating to [Partner B], he continued in a relationship with her.

   ·The applicant lived in [Country 1] illegally and in December 2013 he was deported to Ghana after being sentenced on family violence charges.

   ·[Partner B] represented herself to the sponsor as the applicant’s sister and the sponsor sent her money.

   ·In 2017 the applicant was outside of Australia for [a specified period].

   ·In 2018 the applicant was outside of Australia for [a specified period].

   ·In 2019 the applicant was outside of Australia for [a specified period].

7. The Tribunal put other information to the applicant under s.359AA of the Act. The relevance and consequence of the information was explained to the applicant.  He was invited to comment on or respond to the information and told that he could seek additional time to do so. The applicant requested and was granted additional time to comment or respond. The information put to the applicant is as follows.

   The sponsor told the Tribunal that the applicant was in relationship with [Partner C] who is also known as [Partner C Alias].  [Partner C] and the applicant have a child together named Miss T.  The sponsor has talked with [Partner C]. She has sent money to [Partner C] since [year], to assist with the cost of Mss T’s education.

   The applicant did not declare his relationship with [Partner C] also known as [Partner C Alias] on the visa application form or to the Department. 

8. The migration agent in a post hearing submission stated the following. The parties stated that they have been victimised and blackmailed by a man (Mr M)  who initially advised on the partner visa application.  The man then demanded $[amount] and the parties withdrew. The first migration agent omitted information disclosed by the parties. They believe that the man (Mr M) and the first migration agent worked together and the non-disclosure of information was used by the man when he demanded $[amount]. The parties did not pay this money as they had disclosed the information to the first migration agent.  They believed that the first migration agent would have put the details of their past in the file. After receiving correspondence from the Department, the first migration agent advised the applicant that the applicant’s marriage to [Partner A] in [Country 1] was not legal. At the time of the marriage, the applicant was an illegal person in [Country 1] and the marriage was not valid. The applicant’s marriage to [Partner B] was already in the Department’s file. The relationship and marriage certificate were both provided and uploaded on the applicant’s visitor visa application that was lodged previous to the partner visa application. The applicant’s relationship with [Partner C Alias] was not a long-term relationship and they were just seeing each other for a  time. The applicant submitted the divorce certificate relating to his marriage to [Partner B] because he believed the marriage certificate was ‘in the system’. As such the applicant has not attempted to withhold any information about his past.

9. The migration agent stated that the sponsor was aware of the applicant’s past relationships. The applicant was married to [Partner B] and is legally divorced from her. The parties have never sent money to her. The parties keep in contact with the applicant’s ex-girlfriend [Partner C Alias] also known as [Partner C] as she is the mother of the applicant’s daughter, Ms T.  The applicant provided information about all of his life relationships to the first migration agent including the pregnancy with [Partner C Alias].  He was not aware that the first migration agent had not disclosed these until he received correspondence from the Department about the non-disclosure. After finding out his relationship with [Partner A] was not disclosed, the first migration agent stated it was not necessary to disclose the relationship as the applicant had been living in [Country 1] illegally. The first migration agent also advised that as his relationship with [Partner C Alias] was not serious or long term it did not need to be disclosed and that he could disclose his daughter as a dependent family member later and that the applicant has not been involved with any family violence case in [Country 1].

10. The Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made.  The visa applicant and the sponsor did not declare that the visa applicant married [Partner A] in January 2010 [Country 1]. The applicant did not declare that he had married [Partner B] in December 2013 in Accra, Ghana or his daughter as a dependent family member on the visa application form.  The Tribunal does not accept the applicant’s argument that he did not provide truthful information because of advice from the first migration agent. It does not accept that the non- disclosure of the information only came to his attention after the Department wrote to him. In July 2016, the applicant provided clear evidence that he did not disclose the previous marriage to [Partner A] because he had given the marriage certificate to Mr M. He could not remember the date of the marriage or the other details required to complete the online visa application form. They couldn’t leave any space blank on the visa application form because they could not progress to the next question. He claimed that he didn’t disclose his marriage with [Partner B] because he had given the marriage certificate in a previous visa application. On the visa application form, the applicant in response to the question ‘Previous relationships’, which asked ‘Has the applicant been in any previous relationships with persons other than the sponsor?’  declared ‘No’.

11. The Tribunal is of the view that the applicant was fully aware of his actions and on his evidence made a predetermined decision not to disclose his marriage to [Partner A] in [Country 1] or his marriage to [Partner B] or his daughter as a dependent family member.  The Tribunal is of the view that the visa applicant could not have misunderstood the significance of not disclosing this information. It finds that by not disclosing the information about his marriages to [Partner A] or [Partner B] or his daughter as a dependent family member, the applicant has given, or caused to be given, information in support of his visa application that was false or misleading, at the time it was given, in a material particular and that the information the applicant gave was provided intentionally to secure the grant of the visa.

12. The Tribunal, when considering that the applicant has not disclosed his marriages to [Partner A] or [Partner B] or his daughter as a dependent family member, questions his credibility and the truthfulness of the information he provided in the partner visa application. The information that the applicant married [Partner A] and [Partner B] and has a daughter with [Partner C Alias] who was born in [year] may have been relevant to the criterion in cl.820.211(2) of Schedule 2 to the Regulations.

13. Therefore, the applicant does not meet PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

14. 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 r.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.

15. 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.

16. There are no claims of compelling circumstances that affect the interests of Australia.

    Are there compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa?

17. In March 2017, the first migration agent stated the following. The parties paid an unqualified person $[amount] to lodge a partner visa application for them. The sponsor has type II diabetes, bi lateral knee osteoarthritis, hypertension, tiredness and fatigue and chronic obesity. She cannot stand continuously and cannot lift anything.  Her [children] have severed their relationships with her. She relies on the applicant for her daily needs.  She depends on the applicant and without him would need a continuous carer.  

18. In a statutory declaration dated August 2016, the sponsor stated the following. The parties are happily married. The applicant works hard and helps pay the bills. He has been her life and anchor since their marriage. Her children do not visit her and the applicant is the only one who is there for her.

19. In a statutory declaration dated March 2017, the sponsor stated the following. Her health conditions affect her on a daily basis.  Some days she can’t go to her casual job.  She has [number] children who don’t even contact her to see how she is. The applicant helps her with daily chores and supports her financially and is the only person she can rely on. The following documents were submitted:

    ·A medical certificate dated February 2017, Dr I recorded that the sponsor was examined and in the practitioner’s opinion she is suffering from type 11 diabetes, bi-lateral knee osteoarthritis, obesity and tiredness and fatigue. In his opinion the sponsor needed help on a daily basis at home.

    ·A letter dated 4 February 2019 from Dr R, who stated that the sponsor has a three-month history of left hip pain. The pain is severe at times and makes walking difficult. The pain is present most of the time with different degrees of intensity.  It is present at night-time and wakes her and activities of daily living are severely affected. Otherwise she is fit and healthy. Dr R provided the sponsor papers for his public wait list for total left hip replacement.

    ·A report dated [in] January 2020 from [Hospital 1] recorded that the sponsor had presented to the hospital [in] January 2020 with suicidal ideation and was seen by a mental health professional.  It recorded the presenting complaint as ‘recent marital stressors and carer parental stress’. It further stated that the sponsor had taken 2 Valium tablets the night before and had denied other medication ingestion or actions of self-harm.  The sponsor was discharged on the same day in a stable condition with a follow up plan for her GP.  

    ·A letter dated 16 March 2020 from Ms P, psychologist, who stated that the sponsor was attending sessions to address 'depressive and anxious symptoms'.

    ·A letter dated 29 June 2020 from Dr L who stated the following. The sponsor has diabetes, hypertension, hypercholesterolaemia and osteoarthritis. A nuclear imaging report addressed to Dr L about the sponsor giving an opinion that there is evidence of generalised osteoarthritis.
    
    

20. On 17 July 2020, the applicant advised the Tribunal by telephone that the sponsor had an episode on [an earlier day in] July 2020 and was taken to hospital. The sponsor then spoke with the Tribunal and stated she had a blackout and suffers depression and anxiety.  However, she was released from hospital. She stated that in January 2020, she attempted suicide.

    
    
    

    ·The applicant provided a discharge letter from [Hospital 1] ED and hospital assessment dated [in] July 2020.  The discharge letter stated the following. The sponsor presented to [Hospital 1] ED [in] January 2020 with suicidal ideation. She was discharged in a stable condition with a follow-up plan from the GP. She has since been attending psychological intervention to address depressive and anxious symptoms.

    ·An assessment report dated 20 July 2020, stated that the sponsor is seeing a psychologist. She denied any mental health concerns or any other stressors or triggers and denied suicidal ideations. It stated that the sponsor is wait listed for bilateral hip and knee replacement. It reported the identification of risks are low for suicide, self-harm, violence and absconding. She works [specified weekdays] (9-9) in charity work, currently working from home.

21. On 4 August 2020, the sponsor stated the following. The parties have been together since 2014. The applicant has always supported her though hard times. She is estranged from her children since divorcing their father in 2009. She has tried to contact them but they will not answer her calls or messages.  Her parents are in a nursing home due to them both having strokes.  On [a day in] January she sent a message to her friend stating that she had had enough of life.  Her friend called the police, who went to her home. She was taken by ambulance to [Hospital 1]. As she had suicidal thoughts, she was allowed to leave the hospital in the afternoon under the care of her general practitioner. She was referred to a psychologist who she has been seeing for seven months to address her depression and anxiety. Due to osteoarthritis she finds it difficult to walk long distances and do things for herself. The applicant has always supported her. He helps with general duties around the house such as cleaning, carrying the washing out for her and with the shopping. She is on waiting lists for  hip and knee replacements. On [a day in] July 2020, she collapsed and on awaking she didn’t know where she was. She went out and started walk but didn’t know where she was going A friend telephoned her and she called her back and stated that she didn’t know where she was or where the applicant was. Her friend called the police who found her sitting on a wall.  She was taken to the hospital because she was crying and shivering. She had several tests. She suffers from diabetes, hypertension, hypercholesterolaemia and osteoarthritis and is medicated for these conditions. Various medical and hospital assessment and reports and a copy of a disability parking permit have been provided.

    ·A letter dated 26 November 2020 from Dr L, stated the following. The sponsor experienced recurrent memory loss and is being investigated by a neurologist. She has issues with depression, hip and knee pain and is listed for an operation. Due to her mental and health issues she is unable to attend the Tribunal hearing of 8 December 2020 and seeks a postponement until after February 2021. 

1. On 1 December 2020, the migration agent wrote to the Tribunal and he advised of the following. The sponsor had recent health concerns and had been missing from home on two occasions. She was found disoriented at a bus stop and was taken to hospital. She was sent home by police and advised to consult her medical professionals. [Doctor A], general practitioner directed that she see a neurologist. He advised that in cases of sudden stress and memory fatigue a two to three-month recovery period is required. On 19 November 2020, [Doctor B] advised the sponsor to remain at home for the next few months until her memory loss and wandering episodes are investigated. She remains undiagnosed and is in a fragile state. The demands on the applicant who is the sponsor’s carer and the sponsor’s fragile state meant that the migration agent had been unable to discuss the review with the applicant and the sponsor. If the adjournment request requires the matter be removed from the priority processing, the family are willing to remove their application for priority, to ensure that the sponsor is of stable mental health prior to the hearing.

   ·A letter dated 4 January 2021 from Dr L, stated the following. The sponsor wanted to continue with her Tribunal hearing despite her recent mental health crises.  He advised the sponsor to seek psychiatrist regarding her fitness to attend a Tribunal hearing.

   ·A letter dated 5 January 2021 from Dr K, psychiatrist stated the following. The sponsor attended an appointment on 5 January 2021. She is currently stable with significant improvement in her mental state. While she is currently mentally competent to attend a Tribunal hearing, she expressed a desire to have the hearing delayed for a period of 6 weeks citing various medical health issues.

2. The sponsor provided the same information about her children and her health as in her previous statements.  In addition, she said the following. The applicant looks after her and takes her wherever she wants to go. She is under the Mental Health Act and has just had a knee replacement and in three months will have a hip replacement.  The applicant stated the following. The sponsor’s health is not good. It would be difficult for her to survive if he returned to Ghana.

3. In a post Tribunal hearing submission, repeated information is given about the sponsor’s health. This has already been recorded in this decision record.  In addition, in a letter dated 4 March 2021, Dr L provided the following information. The sponsor has multiple medical issues. She requires the applicant to give her physical and psychological support and to help manage her multiple medical and mental issues.

4. The sponsor told the Tribunal that she relies on the applicant every day.  He looks after her and takes her wherever she wants to go. He is the only person providing her with care.  In a post Tribunal hearing submission, the migration agent puts forward an opinion on behalf of the sponsor and the applicant as follows. The sponsor notes she has no one to look after her other than the applicant. She does not have any support from family and is estranged from her children. Should the applicant depart Australia she will have no support or quality of life and this will propel her mental health issues and place her in a critical situation. She has attempted suicide and does not want this to happen again. It has happened before because of stress, anxiety and fear of loosing the applicant. The applicant puts forward that he  supported the sponsor following her suicide attempts, stress and anxiety that evolved from the partner visa being refused.  Should the Tribunal affirm the decision the sponsor’s conditions will be heightened and previously she has hurt herself. Should he leave Australia it would place significant burden on the Australian economy and the healthcare system as the sponsor would need someone to care for her on a full-time basis.

5. The Tribunal considered the evidence individually and completely. Notwithstanding, the Tribunal’s concerns about the applicant’s credibility and motives for entering the relationship with the sponsor, the Tribunal makes no finding on the parties’ partner relationship. For the sake of this decision it accepts the parties’ relationship at face value. The Tribunal accepts the medical information provided about the sponsor’s health. It accepts that her medical and psychological conditions are debilitating and require ongoing care. It encourages the sponsor to seek professional assistance during any times of anxiety or during any thoughts of self-harm. It is satisfied that the sponsor’s reliance on the applicant for her day-to-day care, are compassionate circumstances that affect the interests of an Australian citizen, justifying the granting of the visa.

6. Therefore, the requirements of PIC 4020(1) should be waived.

   DECISION

7. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

   ·Public Interest Criterion 4020(1) for the purposes of cl.820.226 of Schedule 2 to the Regulations.

   Helena Claringbold
   Member

   ATTACHMENT

   Migration Regulations 1994

   Schedule 4

   4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)the application for the visa; or

   (b)a visa that the applicant held in the period of 12 months before the application was made.

   (2)The Minister is satisfied that during the period:

   (a)starting 3 years before the application was made; and

   (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (2A)The applicant satisfies the Minister as to the applicant’s identity.

   (2B)The Minister is satisfied that during the period:

   (a)starting 10 years before the application was made; and

   (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a)compelling circumstances that affect the interests of Australia; or

   (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

   (5)In this clause:

   information that is false or misleading in a material particular means information that is:

   (a)false or misleading at the time it is given; and

   (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

   …

   Migration Act 1958

   s.5      Interpretation

   (1) In this Act, unless contrary intention appears:

   …

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)purports to have been, but was not, issued in respect of the person; or

   (b)is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)was obtained because of a false or misleading statement, whether or not made knowingly. 

   …