1908911 (Migration)

[2023] AATA 2232

1908911 (Migration) [2023] AATA 2232 (3 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Godson Nwankwo (MARN: 9904865)

CASE NUMBER:  1908911

MEMBER:Margie Bourke

DATE:3 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

Statement made on 03 June 2023 at 9:05am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 – ­ not satisfied the applicant met the requirements of PIC 4020 – false and misleading information – relationship between the applicant and the sponsor had ceased after November 2017 – applicant is in a relationship with an Australian citizen – not satisfied that this amounts to compassionate or compelling circumstances that justify the grant of the visa – requirements of PIC 4020(1) should not be waived – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 5, 65, 359, 376
Migration Regulations 1994, Schedule 2, cl 100.222

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. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 April 2019 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 April 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.100.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant met the requirements of PIC 4020.

3. The applicant appeared before the Tribunal on 22 May 2023 to give evidence and present arguments.  

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Preliminary issues: – the Department’s decision record dated 2 April 2019 is an assessment of whether the applicant meets the criteria and satisfies the requirements of PIC 4020.  In the Department’s decision record dated 2 April 2019 the delegate also recorded that the applicant did not satisfy PIC 4001. This public interest criterion requires that a person passes the character test, or there is nothing to indicate that the person would fail to pass the character test, or that the minister has decided not to refuse to grant to the visa to a person despite reasonably suspecting that the person does not pass the character test, or despite not being satisfied, that the person passes the character test.

7. There is no other information in relation to the assessment of the criteria of whether or not the applicant met PIC 4001 in the Department’s decision record. The delegate has not provided any assessment of the character test in the decision record. The Tribunal is not clear whether the reference to PIC 4001 in the conclusion is a typographical error or is based on information not recorded in the decision record and not available to the Tribunal. In these circumstances, the Tribunal decided it is not appropriate or relevant in this review that it consider whether the applicant meets the requirements of PIC 4001, and has not made any findings as to whether the applicant meets the requirements of PIC 4001 in this review.

8. Nondisclosure certificate: – the Department issued a nondisclosure certificate under s.376 of the Act dated 17 April 2023. This certificate is signed and dated, and records that the information covered by the specified folios was given to the Department in confidence, which meets the requirements of s.376(1)(b) of the Act. The Tribunal provided the applicant with a copy of the certificate on 18 April 2023, and invited the applicant to provide written submissions as to the validity of the certificate. The Tribunal advised the applicant that, subject to submissions received, the Tribunal is of the view that the certificate is valid.

9. The Tribunal further advised the applicant in its correspondence of 18 April 2023 that subject to submissions, the Tribunal considers the prejudicial value of disclosure of the documents, which may lead to the identification of the persons who provided the information in confidence, outweighs the probative value of the disclosure of the documents to the applicant.

10. The Tribunal provided the gist of all the information covered by the nondisclosure certificate pursuant to the requirements of s.359A of the Act, in its letter to the applicant. The gist of the information is set out further in this decision record. The applicant provided a written response in the form of a statutory declaration dated 28 April 2023.

    Public Interest Criterion 4020

11. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.100.222 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).

12. 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.

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

13. 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.

14. 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.

15. 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.

16. In the Department’s decision record dated 2 April 2019, the delegate records that the false and misleading information provided by the applicant was the information contained in the package provided to the Department for the assessment of the permanent stage processing of his subclass 100 visa on 13 July 2018, and the information provided by the applicant to the Department on 6 September 2018. The information provided by the applicant to the Department on 13 July 2018, and 6 September 2018 was in essence that the relationship between himself and the sponsor was ongoing and in existence at the relevant times of the provision of the information, and that both he and the sponsor were committed to the relationship.

17. The Department had been provided with information that the relationship between the applicant and the sponsor had ceased in November 2017, and that the applicant and sponsor had proceeded to prepare to provide information that the relationship was continuing in support of the application for the visa after it had ceased.

18. The applicant subsequently told the Department that the relationship had ceased near the end of September 2018 and he had been the victim of family violence.

19. The information provided by the applicant on 13 July 2018 to the Department was the online application form for the permanent stage of processing for the applicant’s Subclass 100 partner visa application.

20. The Department received information alleging the relationship between the applicant and sponsor had ceased, and wrote to the applicant on 10 August 2018 inviting him to comment on the adverse information received that there had been a change in his relationship status.

21. The applicant wrote a letter in response to the Department’s invitation to comment dated 6 September 2018, in which he stated that the lease at his nominated address in [Suburb 1] had not been terminated and it remains his place of residence. The applicant stated that his relationship had not broken down and his wife [Ms A] (the sponsor) had not become engaged to anyone. The applicant stated their relationship is a legal marriage solemnised in [Country 1] and recognised in Australian law. The applicant stated it is impossible for someone to be engaged to someone while married to a different person. The applicant provided a brief summary of the development of his relationship with the sponsor. The applicant attached a copy of the current lease, a copy of the marriage certificate, a statement from the sponsor together with the relationship history she had submitted with the application for the visa, a collection of photos, three work references in relation to the applicant, a handwritten undated reference from his [friend], and a media reference to the business the applicant and sponsor had commenced while they were in [Country 1]. Also attached to the response provided to the Department dated 6 September 2018 was an agreement to extend the current tenancy at the [Suburb 1] address dated 17 November 2017 with the applicant and sponsor recorded as joint tenants, and records of rental payments.

22. In 2018 the applicant also provided the Department with the applicant’s criminal history police certificate, vehicle registration reminder notice addressed by the applicant and sponsor at the [Suburb 1] address dated 12 April 2018, and a vehicle insurance policy in joint names dated 4 April 2018.

23. The letter provided to the Department typed and signed by the sponsor dated 4 September 2018 stated she was his wife and the sponsoring partner for her husband’s application for the combined subclass 309 and 100 partner visas. The sponsor repeated the adverse information provided in the Department’s letter inviting the applicant comment. The sponsor stated she was fully committed to the legal marriage with the applicant, and the nature of her relationship is that she is married to him which is a legally binding agreement which they entered into in [Country 1] in November 2015. The sponsor declares that a marriage does not break down but only ends if there is a divorce. The sponsor states that she and the applicant are not divorced, and that she is fully committed to the marriage. Attached to her letter, the sponsor provided a 12 page detailed typed written statement about the relationship between herself and the applicant in 2014 and 2015. The sponsor attached a collection of photos of her wedding in [Country 1], and other photos with the applicant and other people from 2014 and 2015.

    S.359A information and responses

24. As stated earlier prior to the hearing the Tribunal sent a letter to the applicant setting out the gist of the information contained in the nondisclosure certificate pursuant to s.359A of the Act.

25. In the letter the Tribunal advised the applicant that there were seven separate allegations made to the Department between April 2018 and August 2018 from different persons in the community. The Tribunal advised the applicant that the sources of the information chose to remain anonymous, but describe their connection with either the sponsor or the applicant and provide detailed information about the allegation they are making and how they became aware of that information.   

26. The Tribunal advised that the seven allegations are consistent with each other, and allege that the applicant and the sponsor separated in November 2017, that the sponsor commenced a new relationship with [Mr B] in November 2017 and that the applicant and/or the sponsor have provided false information to the Department that the relationship between the applicant and sponsor has continued since November 2017.

27. [Details deleted].

28. The allegations that the applicant and sponsor separated in November 2017, that the sponsor commenced a new relationship in November 2017, and that the applicant and sponsor have provided false information to the Department that the relationship had continued since 2017 is contrary to the evidence that the applicant and provided to the Department on 13 July 2018 and 6 September 2018 that the relationship was continuing and that the applicant and sponsor were committed to their marriage.

29. The Tribunal advised the applicant that this information was relevant to the review as the applicant had provided submissions to the Department on 13 July 2018 in the application for assessment of the subclass 100 visa claiming that he was in a genuine and continuing relationship with the sponsor, and the applicant had provided the Department with further submissions and comments on 6 September 2018 including the applicant’s statement that the marriage continued, that the sponsor was not engaged to another person, and the statement from the sponsor that she was committed to the marriage. The Tribunal explained that if it relied on some or all the information provided to the Department in the form of allegations it may find that the applicant had provided false or misleading information to the Minister, in a material particular in relation to the application and assessment for the subclass 100 visa, and may not meet the requirements for the public interest criteria 4020(1).

30. The Tribunal advised the applicant that subject to any consideration of waiving the requirements pursuant to pic 4020(4), the consequences of finding the applicant does not meet the requirements of PIC 4020, would be the reason or part of the reason for affirming the decision under review.

31. Prior to the hearing the applicant responded to the information put to him pursuant to s.359A of the Act. The applicant provided his responses in the form of a statutory declaration. One line was missing from the first copy of the statutory declaration received by the Tribunal, and the applicant provided a second complete copy to the Tribunal of his statutory declaration dated 28 April 2023.

32. In his response, the applicant states that he denies each and every allegation and states the allegations are hearsay, unsubstantiated and unsupported by facts.

33. The applicant states that the same allegations were put to him in the same format by the Department in its letter of 29 January 2019, to which the applicant responded. The Tribunal has assessed the Department correspondence to the applicant dated 10 August 2018 inviting him to comment on information received that the relationship between the applicant and his sponsoring partner on which the application for his visa was based had ceased, and the Department correspondence to the applicant dated 18 January 2019 inviting the applicant to comment on the information held by the Department that the applicant had provided, or caused to be provided, false or misleading information in relation to this visa application. In the correspondence from the Department the allegations were not specified as set out in the Tribunal correspondence, and the format was not the same. There is no letter dated 29 January 2019 from the Department to the applicant on the Department file, and no reference in correspondence or statements from the applicant to the Department to a letter from the Department dated 29 January 2019.

34. The applicant claims the Department investigated the allegations and found none of them to be true. The Tribunal has considered the applicant’s claim that the Department found the allegations to be false, and the Tribunal has considered the Department’s decision record dated 2 April 2019 in which the delegate clearly sets out the allegations. In the Department’s decision record at page 4 to 5, the delegate records that the adverse information held by the Department are allegations that are credible from open sources of information and predate 13 July 2018. The delegate concludes that the relationship between the applicant and sponsor had broken down before the applicant provided the information to the Department on 13 July 2018. The Tribunal does not accept there is any basis for the applicant’s claim that the Department investigated the allegations and found none of them to be true.

35. The applicant also states that the allegations are not supported by evidence and there are no further allegations since 2018. The applicant states that the allegations are false and malicious because there is no evidence that the sponsor and [Mr B] commenced a relationship in November 2017. The applicant states that he has previously declared that during his relationship with the sponsor he confronted some bad friends of the sponsor, and he concludes it is obvious that these individuals would try to actualise their threats by sending malicious allegations against him.

36. The applicant refers to the statement of the sponsor dated 4 September 2018 who confirmed their relationship was genuine and continuing. The applicant states that the Department conducted their own investigations including an interview with the sponsor’s mother, family and friends, but these persons are not referred to in the allegations.

37. The applicant claims that his relationship with sponsor ended before she commenced a relationship with [Mr B].

    Assessment of the evidence

38. The Tribunal discussed with the applicant and his representative in the hearing that it was aware of the dangers of relying on information of allegations made by anonymous sources, particularly in circumstances where the applicant is not aware of the sources of that information.

39. The Tribunal has considered the seven allegations, and is satisfied that the sources of the information provide particulars of their relationship with, or how they know, the applicant or sponsor. The Tribunal has considered the consistency of the information and notes the information was not provided with similar wording or similar reasoning for providing the information. The Tribunal has considered the details provided with the allegations, and is satisfied that the allegations come from diverse and different members within the community. The Tribunal has considered the allegations and is satisfied the anonymous sources provide a plausible explanation for being aware of, or told of, the information contained in the allegations. The Tribunal has also considered the number of the allegations received by the Department over the period April 2018 to August 2018. The Tribunal concludes that the allegations may be reliable evidence. The Tribunal’s assessment of the information is that it should be seriously considered, and assessed with other evidence available to the Tribunal.

1. The Tribunal is also satisfied that it has provided the details of the allegations that are relevant to this review to the applicant. The Tribunal is satisfied that to exercise its discretion and disclose the entire documents containing the allegations to the applicant would necessarily disclose information that could lead to the identification of the sources of the allegations. The Tribunal is satisfied that in circumstances where if it provided the details of all the allegations to the applicant, the prejudicial value of disclosure of the entire documents in resulting in possible identification of all the sources of the allegations, would outweigh any probative value which would be achieved by disclosing the entire documents.

2. The Tribunal notes that the certificate directs that copies of the documents specified in the certificate must not be given to the review applicant. The certificate acknowledges that the Tribunal can disclose the gist of the relevant information contained in the documents to the extent necessary to ensure the Tribunal’s decision is fair and just. The Tribunal notes that s.376(3)(b) states the Tribunal may if it thinks it appropriate to do so having regard to any advice given by the secretary in relation to the information or documents, disclose any matter contained in the documents or information to the applicant or any other person. The Tribunal has considered the direction from the Department contained in the certificate that the documents specified in the certificate must not be given to the review applicant.

3. For these reasons the Tribunal concludes that it is not appropriate to disclose the entire documents to the applicant pursuant to the discretion under s.376(3)(b).

4. The Tribunal discussed the reasons it the allegations may be reliable evidence, and its reasons for not disclosing more than the ‘gist’ of the information to the applicant, with the applicant and his representative in the hearing.

5. In the hearing the applicant’s representative submitted that he could not assess whether the certificate was valid unless the entire information was provided.

6. The Tribunal discussed with the applicant and his representative the reasons it had concluded that the certificate was valid, and the reasons it would not release the information in its entirety.

7. The Tribunal discussed with the applicant and his representative that it had put the gist of the information to the applicant pursuant to the s.359A letter sent to the applicant on 18 April 2023, and had considered the applicant’s response in his statutory declaration dated 28 April 2023.

8. The Tribunal invited the applicant to discuss what information he had provided about the relationship between himself and the sponsor in 2018, to the Department or to the Tribunal. The Tribunal noted that the applicant had provided a copy of the residential tenancy agreement dated November 2016 and the extension of that agreement dated 17 November 2017, and the records of rental payments. The Tribunal noted that the other information provided by the applicant relevant to 2018 was the vehicle registration notice dated 12 April 2018, where the vehicle was registered in joint names and the vehicle insurance policy renewal notice dated 4 April 2018 where the insurance was in joint names. The Tribunal notes that the 2018 documents are extension of previous arrangements (the tenancy, insurance and registration) and include correspondence to a previously provided address.  The Tribunal discussed that this documentary evidence was of limited weight in establishing the applicant continued to be the spouse of the sponsoring partner in 2018.

9. The Tribunal noted that the applicant had also provided in 2018 the statement from the sponsor dated 4 September 2018, three work references all dated 28 August 2018, and an undated hand written letter from [a named person], president of [a] club. The Tribunal noted there was also a media article dated [date] 2016 about the business established by the applicant and sponsor.

10. All other information provided by the applicant in 2018 had been previously provided to the Department in support of the application which was lodged on 19 April 2016.

11. The applicant stated that he wrote the letter to the Department dated 6 September 2018 with the sponsor. The applicant stated that they had taken pictures which they gave to their agent which showed the relationship. The Tribunal acknowledges that photos were taken and provided with the original application for the visa, but discussed there were no pictures provided with the information given to the Department on 13 July 2018 or 6 September 2018, or to the Tribunal. The applicant stated in answer to a question from the tribunal that he had drafted the letter, and that all documents attached to the letter were referred as attachments “A”  to “G” in the letter. The Tribunal is satisfied that there were no photographs referred to or attached to the applicant’s letter of 6 September 2018, excluding the photographs attached to the sponsor’s statement, which were the photos provided with the original relationship history statement at the time of application and were not current photos.

12. The Tribunal discussed with the applicant that it seemed inconsistent that the sponsor had provided a typed detailed twelve paid statement of the Relationship History, which referred to relevant photos with the application for the visa in 2016, but in her responses to the Department in 2018 the sponsor chose to write a brief statement dated 4 September 2018 and attach that previous relationship history. The Tribunal discussed the letter of the sponsor in September 2018 did not provide any details of their relationship except to say that she was fully committed to the legal marriage, that she was married to the applicant and a marriage does not break down but only ends if there is a divorce and that the applicant and she were not divorced. This sponsor does not provide any details in relation to where she lives or with whom she lives at the time of making the statement on 4 September 2018. The sponsor did not provide details of the relationship with the applicant in her letter dated 4 September 2018, and did not provide any attachments excluding the Relationship History document provided to the Department which provided details of the relationship in 2014 and 2015, and photos and documents previously attached to the relationship history document. The sponsor did not attach or refer to any photos to her statement dated 4 September 2018 to confirm the ongoing relationship with the applicant in 2018. That sponsor did not provide any current information, evidence or details of the relationship in her letter dated 4 September 2018, excluding to say she was committed to the married relationship.

13. The applicant stated that he had two previous migration agents, originally a woman called [name], and then a barrister called [name], prior to his current representative. The applicant confirmed the information he had provided to the Department and the Tribunal, was contained in the uploaded application on 13 July 2018, and the statement in response with its attachments dated 6 September 2018. The Tribunal accepts the applicant provided further information in relation to the breakdown of the relationship to the Department in January 2019.

14. The Tribunal discussed with the applicant in the hearing that providing a renewal registration in joint names, a renewal insurance policy in joint names both from April 2018, and a record of extension of the lease in November 2017 and subsequent rental payments was very limited evidence of an ongoing relationship.

15. The Tribunal discussed with the applicant in the hearing that it accepts that the applicant and sponsor were not divorced in 2018, and that the lease at the property at [Suburb 1] had been extended for 12 months in November 2017.

16. The Tribunal discussed with the applicant that the information he provided in September 2018 to the Department, in relation to the vehicle in joint names and the vehicle insurance policy in joint names, addressed to the applicant and sponsor at [Suburb 1] was not sufficient evidence to indicate that the relationship was continuing. The Tribunal accepts that the applicant and sponsor had a car in joint names, and that it had been registered and they had taken out an insurance policy in joint names. The Tribunal accepts that correspondence was received at the [Suburb 1] address from the [state] government and the insurer in April 2018 in relation to ongoing registration and ongoing insurance.

17. The Tribunal discussed with the applicant that the three work references dated 28 August 2018 confirm employment status of the applicant. These documents do not make any reference or provide any evidence in relation to any ongoing relationship with the sponsor.

18. The Tribunal discussed with the applicant that it had considered the hand written letter from the president at [a] club, but notes the letter was not dated. The letter refers to the wedding of the applicant and the sponsor, and describes the applicant is a dedicated husband. Otherwise the letter refers to the applicant’s contribution to the [club] and the contact between the author and the applicant. The Tribunal does not consider this letter is evidence that the relationship between the applicant and sponsor was continuing in 2018.

19. The Tribunal discussed with the applicant that it assessed the applicant had provided limited evidence that the relationship between the applicant and the sponsor continued in 2018, and that this indicated to the Tribunal that the allegations may be correct information.

20. In relation to the allegations the applicant’s representative submitted to the Tribunal that [social media] pages are open to manipulation and the dates on those [social media] pages where the sponsor is recorded as a family member of [Mr B], should be treated with caution. The Tribunal accepted this submission and discussed in the hearing with the applicant and his representative that as [social media] records can be open to manipulation or misinterpretation, the Tribunal would not rely on any adverse inference or information contained on [social media] accounts accessed by the Department.

21. The representative submitted that the issue in this matter was that people the applicant had confronted during his relationship with the sponsor were the people responsible for the allegations made to the Department. The Tribunal discussed with the applicant that the sources of the information provided in the allegations were varied and diverse members of the community.

22. The Tribunal notes that in the report of the social worker, [name], provided to the Tribunal on the day of the hearing, and previously provided to the Department, is a statutory declaration dated 16 April 2019. The social worker records the applicant reported that in July 2018 the sponsor’s behaviour towards the applicant changed, and the applicant reports that the sponsor would invite people he did not like having in the house and there were confrontations between him and those people. In the applicant’s statutory declaration dated 30 January 2019, provided to the Department, the applicant records that in mid July 2018 he noticed some changes in the sponsor’s attitude to him, and after this the sponsor was inviting strangers into their house who were drinking and smoking. The applicant reported having confrontations with these people.

23. The Tribunal had provided the information to the applicant, that the allegations made to the Department were dated from April 2018, which is prior to the applicant’s claims that he had confrontations with persons invited to the home by the sponsor in or after July 2018. The Tribunal discussed with the applicant that the sources of the allegations were varied, and had identified their relationship or their connection with the applicant and/or the sponsor.

24. The Tribunal does not accept that the allegations were made to the Department by persons out of malice after confrontations with the applicant.  The Tribunal has considered the applicant has recorded the confrontations commenced in July 2018.  The allegations received by the Department were first made in April 2018.

25. The Tribunal discussed with the applicant that it gave the allegations of serious weight because of the number of allegations, the consistency of the allegations, and the fact that the allegations were made over a period of time from April 2018 to August 2018.

26. The Tribunal discussed with the applicant that it understood the difficulties when the applicant was not able to be advised of the sources of the allegations, and the credibility of the persons who made the allegations could not be tested. The Tribunal discussed with the applicant that it must assess the allegations with caution. However the applicant was advised by the Tribunal that it had concluded the allegations had substance. The Tribunal has assessed the evidence before it and finds the allegations are reliable evidence to be considered by the Tribunal.

27. The Tribunal discussed with the applicant that it was relevant to the review that the applicant had provided limited evidence of the ongoing relationship after November 2017, excluding the statements from he and the sponsor that they were married, not divorced and committed to the married relationship.

28. The applicant stated he had photos on his [social media] page in his phone with the sponsor and her parents in 2018, and that the [social media] record the dates. The applicant stated that he had a good relationship with the sponsor’s mother, and had a good relationship with both her father and stepfather. The Tribunal discussed with the applicant that it would be helpful if the applicant could contact the sponsor’s mother, and invite her to give evidence in the hearing in relation to the relationship continuing in 2018. The applicant advised the Tribunal that he did not have contact details for the sponsor’s mother.

29. At the hearing the applicant’s representative provided documents to the Tribunal which included a medical report, the social workers report and a psychological report, which had previously been provided to the Department. The applicant’s representative also provided an updated medical report dated 9 May 2023.

30. After the hearing the applicant provided the Tribunal with the screenshots of photos from his [social media] account, dated from November 2017 to June 2018 The Tribunal notes that the applicant’s representative asked the Tribunal not to give weight to any information the Department had accessed on [social media] pages because it was open to manipulation.  The applicant states his phone can be made available for verification of the dates on the photos. The Tribunal has considered the photos, which indicate that the applicant met with the applicant’s mother in December 2017, March 2018 and June 2018. The Tribunal has considered the photos which indicate the applicant was with the sponsor on 26 December 2017, 1 April 2018, 9 May 2018, 13 June 2018 and 29 June 2018.

31. The Tribunal has considered that the information contained in the allegations included that the sponsor was involved in providing false evidence to the Department. The Tribunal has noted that the allegations included the sponsor provided false information and [social media] posts. The Tribunal is not satisfied that the production of photos of the applicant with the sponsor and/or members of her family are sufficient evidence that the relationship was a genuine and continuing in 2018.

32. After the hearing the applicant provided further statutory declarations dated 23 May 2023, in which he maintains that the allegations are simply malicious and false. The applicant submitted that if the Tribunal finds the allegations are reliable that he wishes to exercise his right under the rule of natural justice to request the Tribunal to provide him with all information before it to enable him to understand the substance of the allegations and respond to them accordingly. The Tribunal refers to the previous discussion in this decision record as to why the Tribunal will not disclose the documents in their entirety.

33. The applicant submitted in a statutory declaration dated 23 May 2023 that the information provided by the applicant and the sponsor to the Department did not have an element of fraud or deception, and there was no quality of purposeful falsity.

34. The Tribunal has considered all the evidence provided to it. The Tribunal has given weight to the allegations that the relationship between the applicant and the sponsor ceased in November 2017. The Tribunal finds that the number of the allegations, the consistency in the allegations, the sources identifying how they became aware of the information in the nature of the relationship and/or connection with the applicant and/or sponsor provides a base of reliability to the allegations the purposes of this review.

35. The Tribunal has assessed the evidence provided by the applicant in relation to his claim that the relationship continued after November 2017. The Tribunal finds evidence provided by the applicant in support of the claim that the relationship continued after November 2017 is limited, and the documentary evidence does not demonstrate that the spousal relationship continued between the applicant and the sponsor in 2018.

36. The Tribunal has in particular considered the statements provided to the Department of the applicant dated 6 September 2018 that he was still married, that he was not divorced and the sponsor could not be engaged to another person while still married to him and that the applicant and sponsor remain fully committed to their marriage. The Tribunal has considered the statement of the sponsor dated 4 September 2018 that she was fully committed to the legal married with a husband, that she is married to the applicant and the marriage does not end unless there is a divorce. The Tribunal has noted that these statements do not contain details of the relationship, or details of the circumstances of the relationship at the time statements were made.

37. The Tribunal accepts that on 6 September 2018 the applicant and the sponsor had not divorced. This does not mean the applicant was the spouse of his sponsor within the meaning of s.5F(2) on 6 September 2018.

38. The Tribunal has concluded based on its assessment of all the evidence before it that the relationship between the applicant and the sponsor did not continue after November 2017. The Tribunal has concluded that the information provided by the applicant to the Department on 13 July 2018 that he was still in a spousal relationship with the sponsor at that time was false and misleading. The Tribunal has concluded that the information provided by the applicant in his statement dated 6 September 2018 that his relationship had not broken down and that he and his wife are still committed to their marriage was false and misleading information. The Tribunal has concluded that the statement provided by the applicant signed by the sponsor dated 4 September 2018 that she was fully committed to the legal marriage with her husband and her relationship with the applicant is that she is married to him and has not ended because there has not been a divorce, is false and misleading information.

39. The Tribunal is satisfied that there is evidence before it that the applicant is given or caused to be given to the Minister, an officer, the Tribunal, (or a relevant assessing authority or medical Officer of the Commonwealth), information that is false or misleading in a material particular, namely that he was the spouse of his sponsoring partner at the time the information is given for the purposes of satisfying the requirements of cl.100.221(2)(b) the applicant is the spouse or de facto partner of the sponsoring partner. The Tribunal is satisfied that the information was false or misleading at the time it was given to the Department, and was relevant to any of the criteria the Minister may consider when making a decision on the application, in particular, whether the applicant meets the definition of spouse in s.5F(2), whether or not the decision is made because of that information, and the information was in relation to the subclass 100 visa application made by the applicant.

1. Therefore, the Tribunal is satisfied that the applicant does not meet the requirements of PIC 4020(1).

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

2. 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.

3. 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.

4. The Tribunal discussed with the applicant matters that may amount to compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen in the hearing. The Tribunal invited the applicant to provide submissions after the hearing.

5. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

6. The Tribunal has considered the evidence of the applicant that he previously worked in [an industry] but that business is closed. The Tribunal has considered the work references dated 28 August 2018, and accepts that the applicant has worked in [specified fields] for six years. The applicant provided his statement of service with one of his current employers, and a letter dated 25 May 2023 from another employer confirming he has been employed on a casual basis, is a valued member of staff, he is able to salary sacrifice a portion of his pre-tax income, and the employer is happy with the standard of his work.

7. The applicant submits in his statutory declaration that is currently employed as [an occupation] in two [workplaces], and that [the] work is listed as an occupation in demand for the purposes of skilled migration. The applicant submits in his statutory declaration that by virtue of his employment he contributes to the Australian economy by paying tax and because his employers do not have to undergo the rigorous process of getting overseas employees to do his job.

8. The Tribunal has considered this submission, and accepts the applicant is employed as a [occupation]. The Tribunal accepts that if the applicant was unable to remain in the employment, his employer would have to engage another employee. The Tribunal accepts that the applicant is valued as an employee. However the Tribunal does not find the fact that the applicant is employed, pays taxes, and is a valued employee who would have to be replaced if he no longer worked in his positions, amounts to compelling circumstances that affect the interests of Australia that justify the grant of the visa.

9. The applicant told the tribunal that he was now in another relationship and in a statutory declaration dated 23 May 2023 provided after the hearing, the applicant states his new partner is an Australian citizen, and the applicant submits that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, his partner. In the hearing the applicant told the Tribunal that his partner had suffered a miscarriage. The applicant stated the child was due to be born in approximately November or December last year, and he was not sure of the month when the miscarriage occurred. The applicant stated he had been with his current partner for three or four years, since 2020. After the hearing the applicant provided a statement from the applicant’s current partner dated 26 May 2023. The statement is headed “to whom it may concern” and is signed by [Ms C]. The statement reads as a diary of contact between the applicant and [Ms C], and events they have attended together. The Tribunal notes that based on this statement the applicant and [Ms C] are not residing together although the applicant has stayed the night with [Ms C] as recorded in the diarised events in the statement.

10. [Ms C] records that on [date] of March 2022 she found out she was expecting their first baby. [Ms C] records on 20 March 2022 she went to hospital, was referred for an ultrasound and was advised she was [number] weeks pregnant but that the pregnancy would have to be terminated and she would have to have [surgery]. The Tribunal accepts that [Ms C] was also diagnosed with covid at the same time and was not allowed visitors. The applicant provided the certificate confirming the loss of the child. The Tribunal accepts that the loss of unborn child of applicant and his new partner in the circumstances described by [Ms C] in the statement.

11. On the last page of the statement [Ms C] records that the applicant is her best friend and partner and she is grateful they have met. She records that the applicant has helped her through the lowest times such as the loss of their baby and her depression afterwards, and also the high times such as finishing her [qualification] and her [birthday]. [Ms C] records that if the applicant had to return to [Country 1] she would feel lost and would have to choose between finishing her studies and staying in her employment in Australia or to go to [Country 1] to be with him.

12. The applicant has not provided any medical reports in support of the claim that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Tribunal accepts that the applicant is in a current relationship with [Ms C], although on the evidence before it, the Tribunal accepts the applicant does not reside with [Ms C]. The Tribunal accepts that the applicant and [Ms C] experienced the traumatic loss of their unborn baby in March 2022. The Tribunal accepts that the applicant supported [Ms C] during this difficult time. The Tribunal accepts that this was a sad experience for the applicant and [Ms C], and that the loss of an unborn child can be considered a compassionate circumstance. However the Tribunal is not satisfied that the fact the applicant and his current partner experienced the loss of the child [in] March 2022 amounts to a compassionate or a compelling circumstance that affects the interest of the applicant’s current partner that justifies the grant of the subclass 100 visa.

13. The Tribunal has considered the submission of the applicant that his departure from Australia will adversely affect his current partner. The Tribunal has considered the statement provided by [Ms C] and her statement that she would be lost without him if he had to depart Australia, and she would have to choose between remaining in Australia to complete her studies and staying at her employment, or going to be with the applicant. The Tribunal is required to consider whether the circumstances affecting the interests of the applicant’s current partner are compassionate or compelling such that they justify the grant of the subclass 100 visa.

14. The Tribunal has considered that the applicant would be entitled to apply for a further partner visa sponsored by his current partner. The Tribunal has considered that the three-year exclusion period as a result of the applicant not satisfying the requirements of PIC 4020(1) commenced from the date of the Department’s decision on 2 April 2019. In circumstances where the decision of the Department is affirmed, the exclusion period is deemed to have been completed on 2 April 2022. Therefore the applicant would not be subject to any further exclusion period as a result of any finding by the Tribunal, and the applicant would be entitled to lodge further visa applications without being subject to any exclusion time requirements.

15. The Tribunal accepts that the applicant is in a relationship with another woman, who is an Australian citizen, and whose interests would be affected if the applicant was required to depart Australia. The Tribunal is not satisfied that this amounts to compassionate or compelling circumstances that justify the grant of the visa.

16. There is no evidence before the Tribunal that there are compassionate or compelling circumstances that affect the interests of any other Australian citizen, Australian permanent resident, or eligible New Zealand citizen.

17. The Tribunal has carefully considered the evidence and submissions before it and is not satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, or an Australian permanent resident or an eligible New Zealand citizen, that justifies the grant of the subclass 100 visa.

18. For the above reasons the Tribunal is not satisfied that there are compelling reasons that affect the interests of Australia, and the Tribunal is not satisfied that 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.

19. Therefore, the requirements of PIC 4020(1) should not be waived.

20. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.100.222.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

    Margie Bourke
    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.

    …