1930638 (Migration)

[2020] AATA 1447

1930638 (Migration) [2020] AATA 1447 (15 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1930638

MEMBER:Cathrine Burnett-Wake

DATE:15 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 15 April at 12:59pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visas – Subclass 820 (Spouse) – false or misleading information – incorrect answers on incoming passenger cards and visa applications – criminal convictions and pending charges – claims to be a police informer – formal guilty verdict and sentence – chance of passing character test – substantial criminal record – compassionate or compelling circumstances – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 65, 101, 102, 109, 359, 501
Migration Regulations 1994, Schedule 2, cls 820.223, 82.226; 4 Public Interest Criteria (PIC) 4001, 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Brown v MIAC [2010] FCAFC 33
Deb v MIBP [2016] FCCA 3351
Drake v MIEA (1979) 76 FLR 409
Kaur v MIBP [2017] FCAFC 184
MIBP v Singh [2016] FCAFC 183
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 Immigration on 21 October 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant provided a copy of the delegate’s decision to the Tribunal at the time the review application was lodged.

3. The applicant applied for the visa on 17 December 2018. The delegate refused to grant the visa on the basis that the applicant did not meet Public Interest Criteria 4020, subclauses 4020(1) or 4020(4), and therefore did not satisfy cl.820.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant provided false or misleading information in a material particular in relation to his Partner Visa application and a visa he held in the period of 12 months before the Partner Visa application was made. Specifically, this information being the applicant answered no to questions asked in the Partner Visa application and in relation to a Subclass 457 visa held by the applicant, pertaining to whether he had ever been charged with any offence that is currently awaiting legal action; whether he had been convicted of an offence in any country, including any convictions which are now removed from official records, and if he had ever been subject to an arrest warrant or Interpol notice.

4. The visa applicant also had another matter before the Tribunal (file number 1926025) relating to a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Act. The delegate cancelled the visa on the basis that the applicant did not comply with ss.101(b) and 102(b) of the Act due to incorrect answers the applicant provided on incoming passenger cards and onshore visa applications relating to non-disclosure of criminal convictions and pending charges. The delegate was satisfied there was a ground to cancel the visa and the considerations that weighed in support of cancelling the visa outweighed the considerations that weighed against cancelling the visa. The delegate decided to exercise their discretion under s.109 to cancel the visa on 6 September 2019.

5. In regards to this matter, the refusal of the applicant’s Subclass 820 Partner visa application was initially constituted to a different member.

6. On 25 November 2019, the applicant was invited to attend a hearing before the Tribunal on 12 December 2019 in relation to the Subclass 457 cancellation.

7. However, on 29 November 2019 the Tribunal received, through the applicant’s representative, a request for both of his pending review matters to be combined and heard together. The following reasons were put forward by the representative on why the matters should be heard concurrently:

   • The view was that the issues in both matters are almost identical, if not, identical;
   • To save on Tribunal resources; and
   • To save on the Australian government’s costs in transporting the applicant from the immigration detention centre for two hearings.

8. The Tribunal agreed to this request and the Subclass 820 Partner visa was re-constituted so a combined hearing with one presiding member could occur on 12 December 2019. Although a combined hearing occurred, separate written decisions for the individual matters have been prepared as the determinative issues for each separate review are different.

9. Prior to the hearing, the Tribunal received two written submissions from the applicant’s representative covering both matters. However, these submissions did not put forward any claims, other than that the applicant denied allegations relating to pending criminal charges in [Country 1] and that he believed the allegation which provided the basis for those charges had been made up by his wife as the applicant was going through a bitter divorce from his wife and she wanted sole custody of their children. Further, the applicant told the Tribunal that he had not been aware of the pending criminal charges or a warrant for his arrest being issued in [Country 1], as detailed in the delegate’s decision. The submissions did not however address the convictions against the applicant.

10. The applicant appeared before the Tribunal on 12 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s current spouse; [Mr A], the son of the applicant’s spouse; and Mr [Mr B], a friend and business associate of the applicant.

11. At hearing the Tribunal requested that the applicant provide supporting evidence to all claims made during the hearing and further requested that any supporting evidence be provided to the Tribunal by 13 January 2020.

12. Initially the applicant was represented in relation to the review. The representative attended the Tribunal hearing. However, on 8 January 2020, the Tribunal received correspondence from the applicant that he had terminated the services of the representative and [Ms A] would act as the authorised recipient for communications from the Tribunal.

13. On 10 January 2020, [Ms A] hand delivered to the Tribunal a bundle of supporting documents, which the Tribunal has considered in making its decision.

14. On 13 January 2020, the Tribunal received correspondence from the representative outlining that he had not received instructions from the applicant to respond and that the applicant may have made arrangements to respond directly to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (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).

17. 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 a material particular?

18. 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.

19. 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.

20. 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.

21. The Department’s decision stated:

    I consider that you have provided false or misleading information in a material particular in relation to your current subclass UK820/BS801 visa application and a visa that you held in the period of 12 months before this application was made. On 17/12/2018 you lodged an online application for a subclass UK820/BS801 visa. In this application you answered "No" to the question asking whether you have ever been charged with any offence that is currently awaiting legal action. You also answered "No" to the question asking if you have ever been convicted of an offence in any country (including any conviction which is now removed from official records). You also answered "No" to the question asking has any applicant ever been the subject of an arrest warrant or Interpol notice.

    On 19/07/2019 you provided a [Country 1] penal clearance dated [in 2018] that lists convictions for criminal offences in [Country 1]. In addition information obtained from the [Country 1] Police Service indicates that you have also been charged for allegedly committing or attempting to commit an indecent act with an under aged boy/girl, case number [number]. Sexual assault, case number [number]. I also note that you previously provided the same misleading information in your subclass UC-457 visa application lodged on 28/10/2015 for the subclass UC 457 visa you continued to hold until it was cancelled on 06/09/2019.

22. The Tribunal notes that although the Department particularised what the false and misleading information was, nowhere in its decision did the delegate particularise how the claimed false and misleading information was a material particular and relevant in relation to the visa criteria of a Subclass 820 visa. Notwithstanding this, the Tribunal is of the view that the false and misleading information pertains to the assessment of cl.820.223 that the applicant must satisfy PIC 4001.  This was explained to the applicant at hearing.

23. The question for the Tribunal in this instance is whether the applicant, by not declaring his convictions as per the [Country 1] Police Service [criminal history] record or charges laid against him for allegedly committing or attempting to commit an indecent act with an under aged boy/girl on his 457 application and the 820 partner visa application, amounts to false and misleading information.

    The hearing

24. At the commencement of the hearing, the Tribunal addressed a number of procedural issues with the applicant.

    Combined hearing

25. Firstly, the Tribunal addressed the fact the hearing was a combined hearing for both of the applicant’s matters currently before the Tribunal and that the hearing has been combined by way of written request received by the Tribunal on 29 November 2019 through the applicant’s then representative. The Tribunal outlined the reasons that were put forward (as per paragraph 7 of these reasons) by the representative on why the hearing should be combined and that the Tribunal had agreed to the request. The Tribunal asked the applicant to confirm if he wished to proceed with a combined hearing for both of his matters, to which the applicant confirmed he did. Additionally, the Tribunal asked the applicant to confirm for it that he agreed that any verbal evidence received in the combined hearing, whether it is from himself or any witnesses, can be used in both matters, to which the applicant confirmed he agreed.

26. The Tribunal then explained to the applicant in detail the legislative criteria upon which the Subclass 457 was cancelled and on which the Subclass 820 Partner visa refused and the determinative issues in relation to both matters before the Tribunal.

    Self-incrimination

27. The Tribunal then addressed the applicant’s privilege against self-incrimination. The Tribunal explained it was aware of criminal charges pending against him as outlined in the decision record and that there was a warrant out for his arrest in [Country 1]. The Tribunal then proceeded to caution the applicant about self-incrimination and that if he did make any statements regarding the pending charges, they could be used against him in evidence in the separate criminal proceedings. The Tribunal then advised the applicant that if he chose to assert his privilege against self-incrimination when asked by the Tribunal about those matters that the Tribunal would not make any adverse findings against him in that regard because the assertion of his privilege and decision not to answer the Tribunal’s questions on those matters as a result, would be the mere exercising of the applicant’s legal rights. The Tribunal outlined to the applicant that it was not its role to decide whether he is guilty or not of the charges and that was the role of the criminal justice system in [Country 1].

28. The applicant outlined that he wished to exercise his privilege in relation to any questions from the Tribunal over the pending charges and that he did not wish to discuss them.

29. The Tribunal noted that in the pre-hearing submissions provided by the representative the applicant claims he was not aware of any pending charges in 2015 when he came to Australia, nor of an arrest warrant issued in 2016. The Tribunal acknowledged this and outlined that at the outset it accepts that this is plausible. As such, it accepts when completing incoming passenger cards in 2015 and subsequent visa applications he may not have been aware of the existence of the criminal charges or warrant for his arrest relating to charges brought against him in 2015. Notwithstanding this, the Tribunal outlined it was cognisant of the fact that there were previous charges, convictions and prison sentences as reflected in the [criminal history] check and detailed in the decision record of the Department, which were substantial and that the Tribunal would be confining its findings to these convictions and charges in respect to whether false or misleading information was provided.

    Non-disclosure certificates

30. Prior to the hearing, the applicant submitted an access to documents request for both matters pursuant to s.362A of the Act. A number of documents contained on the Department files were not able to be released due to non-disclosure certificates issued by a delegate of the Minister under ss.375A or 376 of the Act. Copies of the certificates were released to the applicant as part of the s.362A request, however, the Tribunal considered it important to also raise the non-disclosure certificates during the hearing.

31. The Tribunal explained to the applicant that the Department files for the cancellation and partner matters both contain certificates and notification regarding disclosure of certain information to the Tribunal under ss.375A and 376 of the Act. The applicant and his representative were handed copies of the certificates in the hearing and the Tribunal read the contents of the certificates out to the applicant.

32. The Tribunal explained it had taken the view that they are valid certificates and accordingly release of information is prevented under the documents covered by the s.375A certificate(s) and release of information covered by the s.376 certificate(s) is discretionary if the Tribunal thinks it is appropriate.  It was explained that the Tribunal had taken the view that the certificates are valid because of public interest reasons. That is, the non-disclosure reasons are clearly specified in the certificates with sufficient detail to identify the claimed harm to the nation or public service and/or an individual. The Tribunal outlined that the certificate material contains information shared between internal sections of the Department, external agencies and persons and the disclosure of this information would be contrary to the public interest.

33. The Tribunal explained to the applicant that in accordance with the Full Federal Court decision in MIBP v Singh [2016] FCAFC 183, it is required to balance its obligations under ss.375A and 376 with its obligations to provide the applicant with procedural fairness, including under ss.359A or 359AA of the Act, where it is possible to do so. The Tribunal explained that s.359A of the Act sets out a procedure for the Tribunal to inform applicants of information that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review and invite them to comment on or respond to that information before the Tribunal makes a decision on their application. However, the Tribunal noted that the primary decision record(s), which were submitted with the review application(s) by the applicant fell within the exceptions of s.359A (under s.359A(4)(b)) and contained the majority of the information protected by the certificates, and relate to the previous convictions and information regarding the pending charges. The Tribunal was therefore of the view that in this instance there is no obligation for it to put the information to the applicant in accordance with ss.359A or 359AA. The Tribunal did, however, provide the applicant with the gist of the information that was certified, outlining that it related to his previous convictions and information regarding the pending charges/arrest warrant and included correspondence between the Department, [the Country 1 police] and other parties.

34. The applicant and his representative were then invited to make submissions on the validity of the certificates and state why the material should be released. The applicant and representative chose not to make submissions on the validity of the certificates.

    Verbal evidence of the applicant

35. At the commencement of the applicant giving verbal evidence, the Tribunal asked the applicant about his convictions in [Country 1]. The applicant stated that he never spent one day in prison and that in his mind he was never really convicted. The Tribunal asked the applicant to explain how this could be the case, when the convictions appeared on the [criminal history] check he provided to the Department.

1. The applicant claimed that he was an informer for [the Country 1 Police] during the 1980s and that he had given [the Country 1 Police] information relating to [a named Country 1] crime gang, regarding their activities, which resulted in multiple convictions of gang members. He claimed that so his cover would not be revealed, as he and his family’s lives would be at risk, he was charged and convicted too so the crime gang would not know he was the informer.  It should be noted that this was the first instance the applicant raised these claims. The applicant did not make these or similar claims to the Department or in earlier submissions to the Tribunal.

2. The Tribunal asked what evidence the applicant had to substantiate the claims he was an informer for [Country 1 Police] and that the charges and convictions were, as he claimed, only so his cover as a [Police] informer would not be revealed. The applicant responded he did not have any.

3. The Tribunal asked the applicant to explain why, if he was an informer as claimed and if he was only charged so his cover was not revealed, the police record would show multiple convictions. The applicant responded that he thought the [Country 1 Police] would not have recorded anything against his name, as they had told him that would be the case. He claimed that when he received the police check he was shocked to see the convictions.

4. The Tribunal asked the applicant if he attended court in [Country 1] relating to the convictions on the criminal history check, to which he confirmed he had. The Tribunal asked if he appeared before a judge who then passed a guilty verdict, to which he confirmed he had. The Tribunal then asked the applicant to explain why, if he had gone through a formal court process and was found guilty by a judge, he did not declare this information when completing incoming passenger cards and visa applications. The applicant stated in response that in his heart he believes he was not truly convicted.

5. The Tribunal outlined to the applicant that its role was to make findings of fact and that currently, the fact that could be verified, through the [criminal history] check, was that he had been convicted of multiple counts of fraud and sentenced to multiple suspended jail terms. Further, that his claims to the contrary were not supported by other evidence and without evidence to support his claims the Tribunal would rely on the public record available to it to make its findings.

6. The Tribunal asked what, if any evidence, the applicant could obtain from [Country 1] to verify his claims and stated that in its view, if his claims were true, then he would likely be able to obtain evidence to corroborate his claims, whether it is from [Country 1 Police], a [Country 1] judicial authority or another independent person or office. The applicant outlined he was not sure what evidence he could gather, and it was difficult to do anything whilst he was in detention. The Tribunal noted that he had engaged the services of a representative, and it would be open for him to also engage the services of a lawyer in [Country 1] or someone else to assist him, and given the seriousness of his current situation, that it would be in his interests to do so to substantiate his claims.

7. The Tribunal outlined that given the nature of his claims, and the lack of evidence to support them, it would provide the applicant with additional time post-hearing to provide evidence for its consideration, as without supporting evidence to support the claims the weight the Tribunal would give his verbal evidence, when the public record reflected in the [criminal history] check contradicted that evidence, may be significantly reduced to the point where the Tribunal prefers and makes its findings of fact based on the public record.

8. The Tribunal discussed with the applicant that if it decided that there was false and misleading information, the PIC requirements 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 that justify the granting of the visa.

9. The applicant told the Tribunal that he was [an occupation 1] and that he initially came to Australia on a Subclass 457 visa, sponsored by [Business 1]. The applicant’s evidence is this employment relationship broke down within a month or so of his arrival in Australia as the terms and conditions he agreed to and were promised did not transpire and he believes they deceived him and got him to Australia under false pretences.

10. The applicant told the Tribunal that around the time of the problems he claims to have experienced with [Business 1], he was expecting his wife and children to be making arrangements to move to Australia, as that was the plan before he travelled to Australia. However, over that period his relationship with his wife broke down and she made accusations against him regarding inappropriate behaviour towards his daughter, which he categorically denies. He outlined to the Tribunal that he believed his wife made up a story of inappropriate behaviour so she could get sole custody of their children. Further, he believed that she is the source of information protected by the certificates on the Department files that the Tribunal had discussed earlier and could not release. The applicant told the Tribunal that he realises now he was a fool for marrying his previous wife who was much younger than him.

11. The applicant then told the Tribunal that following him leaving [Business 1] and his marriage breakdown, he then went to work on a Subclass 457 visa with [Business 2] as their [specified role].

12. The applicant told the Tribunal that [Ms A’s] daughter was working for an affiliate of [Business 2] and she introduced him to her mother. He outlined the way they met was because [Ms A] was a [health worker] and he went along for a treatment.

13. The applicant told the Tribunal that he met [Ms A] four and a half years ago, after what he described as going through a difficult period, and that he thought he could not find happiness. He told the Tribunal that he met and fell in love with her and they decided to make a life together.

14. The applicant told the Tribunal that he and [Ms A] moved in together, at the beginning of September 2016, into a property in [one suburb], and six months after, they moved to their current rental property in [Suburb 1].

15. The applicant told the Tribunal that he is very close to [Ms A’s] son. He outlined that the son had a difficult childhood as his father was an alcoholic and had died. The applicant told the Tribunal that [Ms A’s] son had been mentally tortured as a child, and that he believed he had helped him with his life direction and purpose.

16. The applicant said that he is not as close with [Ms A’s] daughter, as she has a partner and is busy working. The Tribunal asked if she was going to be providing any supporting evidence as a witness, to which he responded that she was too busy with work and was not able to attend the hearing.

17. The applicant told the Tribunal that in his down time he loved gardening with [Ms A] and because of her he had now became a person who cared for nature. He claimed that he now donates to [one charity] on a monthly basis as well as to [another charity].

18. The applicant told the Tribunal that he is close to [Ms A’s] father, and that he enjoyed spending time with him having long and interesting conversations, and he has become like a father to him.

19. The applicant told the Tribunal that he had started a company with [Ms A] as he had [developed a process] that produces the by-product [product 1], which he claimed sells for [amount] per kg.

20. The applicant’s evidence is that he has [patents] registered for this technology.

21. The applicant additionally told the Tribunal that he had current negotiations with [an authority], and that he believed that his [process] will create [number] jobs in Australia.

22. The applicant also gave evidence that an overseas investor was willing to invest AU$[amount] in this technology. The applicant stated he had a contract for AU$[amount] in negotiation, however, the deal did not proceed as he did not believe the people were good and that he ‘does not deal with crooks’.

23. The applicant stated that he had negotiations currently pending with people from five different countries and it was important that he was out of detention so he could keep things alive with the negotiations.

24. The Tribunal asked at what stage of commercialisation he was at with [one element of the process] and whether his [technology] in relation to this and the production of [product 1] had been peer reviewed and independently verified as viable. The applicant outlined that he had a business plan, and that the [element] had not been peer reviewed or independently verified, and that he had built a prototype [technology] and that just prior to going into detention he had successfully trialled the mini-prototype and produced what he believes to be [product 1]. He told the Tribunal that he has the [product 1] sample produced by this test, and it was going to be sent to a University for verification; however, he was put into immigration detention before it could be sent.

25. The applicant told the Tribunal that he was very passionate about the environment and social issues, that his goal with all the money he anticipates to make from his venture was to be able to assist less advantaged people and that there would be no woman, child or homeless person living on the street.

26. The Tribunal asked whether his business could be run from [Country 1], to which he responded no, as it was set up in Australia.

27. The Tribunal asked the applicant if he could relocate to [Country 1] with [Ms A], to which he responded he cannot return to [Country 1] due to the safety risks for women. The applicant told the Tribunal that [a large number of] women were raped each month in [Country 1] but did not provide any supporting evidence for this claim.

28. The Tribunal asked the applicant if he had any family in [Country 1], to which he responded he had a sister, however, she only contacts him if she requires money.

29. The applicant told the Tribunal that he has spent the last five years in Australia and he considers himself to be Australian and that he has lived a pure and clean life in Australia.

30. The applicant outlined that if he had to return to [Country 1] it would ‘kill him’ and [Ms A]. They cannot live without each other and he has never been so close to anyone and she was his pillar of strength.

    Evidence of [Ms A]

31. [Ms A] outlined the history of her relationship with the applicant, which was consistent with the applicant’s testimony.

32. [Ms A] gave evidence to the Tribunal that the applicant was completely open with her, and that he had told her about him being an informer for the [Country 1 Police] early in their relationship.

33. [Ms A] told the Tribunal that she was also aware of the allegations that the applicant’s ex-wife had made against him regarding inappropriate behaviour towards their daughter and that she supports the applicant and believes his ex-wife’s allegations are unfounded and not true.

34. [Ms A] outlined to the Tribunal that she and the applicant had established the company [Business 3] to take the applicant’s [process] to produce [product 1] to commercialisation. [Ms A] outlined that her role was administrative in the company and she did not really understand the science, but she was aware that the applicant had been actively engaging with potential investors for funding of the company. [Ms A] outlined that she was aware that the applicant had built a [mini-prototype] and that she understood from him it was successful; however, they had not had the sample tested yet and that it was still in the drawer at her home. The Tribunal asked if she intended to send it off for verification, to which she responded, not at this stage, and they would when the applicant was released from detention.

35. [Ms A] outlined that she had struggled financially since the applicant was placed into detention; she was in arrears with rent and would have to move to a different property soon as she could not afford the rent without the income of the applicant.

36. The Tribunal asked [Ms A] about the applicant’s relationship with her son. She outlined to the Tribunal that her son got along well with the applicant.

37. [Ms A] outlined that she relied on the applicant financially and emotionally and was finding it difficult without having the applicant around.

38. [Ms A] outlined that she had in the past suffered from mental health issues, which required treatment, however, she was not currently under medical treatment for such issues.

    Evidence of [Mr A]

39. [Ms A’s] adult son attended the Tribunal hearing and gave evidence in support of the applicant.

40. Primarily, [Mr A’s] evidence was that his mother was in a genuine relationship with the applicant. His evidence was consistent with the evidence of both the applicant and [Ms A] regarding the evolution and nature of the relationship between them.

41. The Tribunal asked [Mr A] about his relationship with the applicant. [Mr A] stated he got along with the applicant and enjoys speaking with him and that he would see him if he went to visit his mother.

42. The Tribunal asked how it would impact him if the applicant was to return to [Country 1]. He responded that he had got used to having the applicant around, so it would be weird if he was no longer there when he went to visit his mother and that it would impact his mother more than him as she seemed happy with the applicant.

    Evidence of Mr [Mr B]

43. [Mr B] told the Tribunal that he was a business associate of the applicant and had met him in 2019. He had since been assisting him with the business development of [Business 3].

44. [Mr B] told the Tribunal that he had been present for meetings in relation to the applicant’s discussions with potential investors, and that he was aware there was interest in the [applicant’s process]. However, although there was interest there was no investment yet.

45. [Mr B] told the Tribunal that he believed there was great potential for the [technology]. He did, however, concede that it had not been peer reviewed; nor had the mini prototype the applicant claimed to have built been verified as able to produce [product 1].

    Concerns of the Tribunal raised at the end of the hearing

46. The Tribunal outlined to the applicant that it had serious concerns, specifically in relation to the applicant’s evidence of being an informer for [the Country 1 Police] and that the charges and convictions were only to prevent his identity as an informer for [Country 1 Police] from being revealed, as his evidence in relation to these matters was not supported by any independent evidence. Additionally, there was no documentary evidence before the Tribunal regarding his [product development], the claimed registered trademarks, and the establishment of [Business 3] or about the potential investors in the [process]. The Tribunal informed the applicant that it was not yet convinced about the truth of these matters based on the oral evidence of the applicant and witnesses.

47. The Tribunal outlined to the applicant that it wanted to afford him the opportunity to present supporting evidence to address its concerns.

48. The Tribunal gave the applicant three weeks to gather and provide the supporting information he wished the Tribunal to consider, and advised the applicant that if he required more time to gather such evidence he could ask the Tribunal for an extension of time.

    Post hearing submissions and further claims not raised during hearing

49. On 10 January 2020, the Tribunal received 296 pages of supporting documents from the applicant, which the Tribunal has considered in reaching its decision.

    The applicant’s post hearing written statement

50. The applicant’s written statement, provided as part of the 296 pages of post hearing documents, elaborated on the oral evidence provided during the hearing and made further claims that were not raised during the hearing (as detailed above) about his past, which can be relevantly summarised as follows:

    • The applicant was raised in the [Church 1] faith, [details deleted]. He claimed his father was a priest and his family was heavily involved in all church activities. Further, he became a priest in the [Church 1] in [year] and was promoted through the ranks very quickly.
    • The applicant ran a [business] for more than 30 years, doing business with [various] industries. The applicant stated his clients included [different agencies and businesses].
    • The applicant stated that because of his business and church connections, he had contact with many government departments. As such he was approached by [Official A] of the [Country 1 Police] and asked to infiltrate a group known to them as [crime group name]. The applicant stated he was told that it was necessary to bring in an unknown and unregistered person due to the influence of this group and that [the Country 1 Police] had gone through police personnel and court officials but they did not have anyone that they could trust. The applicant stated he was introduced to [Member A], [Member B] and [Member C]. The applicant states that he was also introduced to magistrates and high-ranking people in government departments. The applicant states that he found out that these people were all members of the [Party 1], which he claims was a terrorist group in [Country 1] at that time. The applicant claims he was able to determine (and inform [Official A]) that this group was planning [criminal operations] in [Country 1].

    ·The applicant states that he was assured that he would not be held accountable for any actions taken whilst involved in this process and would not have any criminal convictions documented against his name. The applicant states that this operation was successful and resulted in the convictions and jailing of [Member B], [Member C] and others and the cessation of this criminal activity. The applicant states he was informed by [Official A] that in order to guarantee his personal safety, it was necessary to show a conviction against his name so that those who were convicted did not realise how they were caught.

    ·The applicant states that he did not serve any time in prison for the crimes that have been recorded against him and that it was always his belief and understanding that there would never be any record of criminal conviction against his name.

    ·The applicant states this is why he has never declared any criminal activity on his entry card to Australia.

    ·The applicant states that when the [government] came to power, those people he allegedly assisted to help convict acquired senior positions, for instance, [Member C] is now a [a senior role] and [Member B] is a [senior role]. The applicant states that this demonstrates that the new government is prepared to install ex-convicts into positions of power in [Country 1].

    ·The applicant states these individuals would see his police record, and that as he did not serve time, they will therefore realise he was the one who informed on them. The applicant states it is for this reason that it is not safe for him to return to [Country 1] as these people will want to do him harm.

    ·The applicant states that as the convictions on his police record are for matters from the 1980s, he has had no contact with anyone in relation to these cases since that time and is therefore unable to state where they might be or whether they are in fact still living. He claims to have found out that [Official A] passed away in the last two years and [another official] passed away in the last six years.

    ·The applicant states he was invited to Australia by [Business 1], including [Executive A], with whom he signed a [contract] in 2015 as they were interested in developing [another project].

    ·The applicant states he was invited to come to Australia on a business visa, promised motor vehicles, housing and a large sum of money but once he arrived, he was not provided any of these things. He states he was stalled and put off and after some months of negotiation and changes to his original agreement, only offered a 457 visa by [Business 1]. He states this was not what was originally offered to him and that he would not have come to Australia on such a visa. The applicant states he did not sight the visa application and his signature was coerced out of him on the understanding that it had to be done quickly as he would become illegal in the country and they would sort it out later. He states as he did not have the funds to return to [Country 1] he had to accept them at their word.

    ·The applicant states he came to Australia with the understanding that his then wife was going to pack up their belongings and follow him within a couple of months, bringing their [young] children so that he could begin their new life in Australia together. He states he had discussed this for many months prior to visiting as a family in early April 2015, as they were also invited to go to [another country], but chose Australia because of its sunny climate and the big potential that was offered by [Business 1].

    ·The applicant states within one month of arriving in Australia, he discovered that his then wife was not packing up to come to Australia but was filing for divorce from him in [Country 1]. He states she refused to accept any communication from him and would not let him have any communication with his children. He states he was then informed that the reason for the divorce was he was being accused of inappropriate behaviour towards his [daughter]. The applicant states he was never served any warrant to this effect and that to his knowledge he was never charged with these offences. He states they were only accusations that his then wife used to try to get a divorce from him and obtain sole custody of their children.

    ·The applicant states his ex-wife’s accusations could not be proved and his divorce case was dismissed from court. He states he never received any written confirmation of any of these accusations or this information. He states this this was what he was told by the lawyer for [Business 1], [Lawyer A]. The applicant states when his divorce case was dismissed from court his then wife changed her legal representation to another firm.

    ·He states that in 2018 he received an application for divorce from his then wife's new legal representative, which did not include any accusations of inappropriate behaviour towards his daughter. The applicant states he has never seen any written paperwork relating to these accusations, nor has he been served any summons or warrants relating to any accusations at all since being in Australia or even in [Country 1].

    ·The applicant states he has wanted to obtain a divorce from his ex-wife [named] since 2015, when his relationship with [Ms A] began, so that they could have a clean life together going forward.

    ·The applicant states that he has come to know that [his ex-wife], along with a former business partner of his and other business associates in [Country 1], were spreading rumours that he had fled the country leaving them all destitute and had stolen money from them. He states these rumours were relayed to him by [Lawyer A] and [Executive A] from [Business 1]. He states he has never seen any written accusations to this effect or been told this in person by anyone that he knows in [Country 1].  He states he has never taken money from any person with the intent to de-fraud them. He states he has always worked very hard and had a good reputation for being an honest businessman and upstanding person.

    ·He states he believes that the people from [Country 1] were working hand in hand with [Business 1] in Australia to try to force him to sign over the intellectual property for [another project] so they could sell it for themselves and cut him out.

    ·The applicant states after cutting ties with [Business 1], he was requested to sign a form to the effect that [Mr C], representing [Business 2], would take over his 457 visa in order for him to remain in Australia and to receive an income. He states he agreed to do this for his own safety and protection and that he does not recall going through the visa application with his representative to ensure that everything was correct.

    ·The applicant states that his agreement with [Business 2] was that they would form a company, [Business 4], and they would support him under the 457 visa requirements. He states he was only a shareholder in this company and did not hold any legal position. He states during this time with [Business 4] he [developed product 2] that was originally patented under his name but the full patent did not have his name [in the proposal] and so they were able to cut him out of any deal to sell the product on the open market. He states he was again denied rights to his own [product] and the possibility of securing a better future for himself in Australia.

    • The applicant states that shortly after that time he was told by [Business 2] that they could no longer support him financially and he was forced to leave the premises within minutes without any of his papers, work, tools or anything. He states the company even tried to stop him from taking his own laptop; he was working on other [projects] and had some sensitive paperwork in the office which he was not allowed to take with him.
    • The applicant states that a copy of a bank statement (as provided to the Tribunal on 10 January 2020) was dated after his departure from those premises showing a deposit of $[amount] into the [Business 4] business account which he presumes is a payment for the [product 2] as he cannot understand why else they would use that account. As this money has gone through a business account that he is part of and as this [product was developed] by him, he believes that he has a right to a percentage of that income.
    • He states that neither [Business 1] nor [Business 2] as his 457 visa sponsors have paid tax or medical expenses on his behalf. He states he has only ever been paid cash and it is recorded as a loan. He states as his visa was signed under duress and without full explanation and consent he only became aware of these irregularities recently.

1. On 3 February 2020, the Tribunal affirmed the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.  The Tribunal made findings the applicant did not comply with ss.101(b) and 102(b) of the Act due to incorrect answers he provided on incoming passenger cards and in his Subclass 457 and Subclass 820 onshore visa applications relating to non-disclosure of criminal convictions.

2. On 5 February 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act. The letter relevantly stated as follows:

   I am writing in relation to the application for review made by you in respect of a decision to refuse your Partner (Subclass 820) visa.

   In conducting the review, we are required by the Migration Act to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are that:

   On 22 July 2019, you provided the Department a copy of a [Country 1] police check in your name. A copy of this police check is enclosed. This police check demonstrates you have the following criminal history in [Country 1]:

   Two counts of fraud ([in] October 1984) – ‘charges taken as one for purpose of sentence. 12 months imprisonment which is suspended for four years’

   [Number] counts of fraud ([in] May 1987) – ‘charges taken as one for purpose of sentence. 6 years imprisonment which is conditionally suspended for five years and [amount] compensation’

   Two counts of fraud ([in] April 1994) – ‘charges taken as one for purpose of sentence. 8 years imprisonment which is conditionally suspended for 5 years and [amount] compensation’.

   On 3 February 2020, the Tribunal affirmed the decision to cancel your Subclass 457 (Temporary Work (Skilled)) visa.  The Tribunal made findings you did not comply with ss.101(b) and 102(b) of the Act due to incorrect answers you provided on incoming passenger cards and your Subclass 457 and Subclass 820 onshore visa applications relating to non-disclosure of criminal convictions. The decision of the Tribunal detailed that there was non-compliance with ss.101(b) and 102(b) of the Act[1] on the following occasions:

   [1] Section 101(b) of the Act requires a noncitizen to fill in or complete the application form in such a way that no incorrect answers are given or provided. Section 102(b) of the Act requires a noncitizen to fill in or complete their passenger card in such a way that no incorrect answers are given.

   [In] March 2015 – The applicant arrives in Australia on a [Business Visitor] visa.

   He marks ‘No’ on his Passenger Card to the question ‘Do you have any criminal conviction/s’

   [April] 2015 – The applicant arrives in Australia on a Business Visitor Visa.

   He marks ‘No’ on his Passenger Card to the question ‘Do you have any criminal conviction/s’

   [July] 2015 – The applicant arrives in Australia on a Business Visitor Visa.

   He marks ‘No’ on his Passenger Card to the question ‘Do you have any criminal conviction/s’

   28 October 2015 – The applicant submitted an application for a Temporary Work (Skilled) (Subclass 457) visa.

   On the electronic application form he answers ‘No’ to the following questions under the character declaration:

   Has any applicant ever been charged with any offence that is currently awaiting legal action?

   Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?

   Has any applicant ever been the subject of an arrest warrant or Interpol notice?

   Has any applicant ever been found guilty of a sexually based offence involving a child (including where no conviction was recorded)?

   Has any applicant ever been named on a sex offender register?

   At page 11 under the heading ‘Declaration by applicant’ the applicant answered the following (in bold):

   WARNING: Giving false or misleading information or documents is a serious offence.

   I declare that:

   The information provided in this form is complete, correct and up-to-date. Yes

   I understand that if any fraudulent documents or false or misleading information has been provided with this application or if I fail to satisfy the Minister of my identity, my application may be refused and I, and any member of my family unit, may become unable to be granted a visa for a specified period of time. Yes

   I understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled. Yes

   17 December 2018 – The applicant submitted a Partner Combined (Subclass 820/801) visa application which was sponsored by his partner [Ms A].

   To the following questions the applicant answered ‘No’

   Has any applicant ever been charged with any offence that is currently awaiting legal action?

   Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?

   Has any applicant ever been the subject of an arrest warrant or Interpol notice?

   Has any applicant ever been found guilty of a sexually based offence involving a child (including where no conviction was recorded)?

   This information is relevant to the review because the Tribunal may form the view that there is evidence that you have 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 Partner Subclass 820 visa or a visa that you held in the 12 months before the Partner Subclass 820 application was made.[2]

   [2] 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.

   The consequence of the Tribunal relying on this information is that the Tribunal may find that you provided false and misleading information in relation to the assessment of clause 820.223 which requires that you must satisfy public interest criteria (PIC) 4001 as follows:

   PIC 4001:

   Either:

   (a)      the person satisfies the Minister that the person passes the character test; or

   (b)      the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

   (c)      the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

   (d)      the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

   Regarding the character test for the purposes of PIC 4001 a person does not pass the character test,[3] if the person has a substantial criminal record.[4] For the purposes of this character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

   For the purposes of determining whether an applicant has been sentenced to a term of imprisonment of 12 months or more within s.501(7) of the Migration Act, it is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant.[5]. A sentence to a term of imprisonment which is suspended also falls within the subsection.[6]

   Your criminal history record demonstrates that you were sentenced to multiple prison terms in excess of 12 months, which is considered a substantial criminal record.

   As noted above, if the Tribunal were to rely on this information as set out in paragraphs 1 and 2, it would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate to refuse the Partner Subclass 820 visa that is under review.

   [3] Character test is defined in s.501(6) of the Act.

   [4] Substantial criminal record is defined in s.501(7) of the Act.

   [5] See Drake v MIEA (1979) 76 FLR 409 at 415-418.

   [6] Brown v MIAC [2010] FCAFC 33 (Moore, Rares, Nicholas JJ, 20 April 2010) at [11]-[12].

3. On 12 March 2020, following the Tribunal granting an extension of time to the applicant to respond to the s.359A letter, the applicant provided the Tribunal with a sworn affidavit along with a copy of a generic invitation for the applicant to attend an [industry consultation] hosted by [an authority].

4. The affidavit provided to the Tribunal was mostly a reiteration of verbal evidence provided at hearing and information in the written statement given to the Tribunal on 10 January 2020, as already outlined in detail above. New information of significance in the affidavit was as follows:

   • The applicant headed [a charity] in [Country 1] during the1980s;[7]
   • The applicant made comment regarding Case No: [number] — ‘Committing or attempting to commit an indecent act to a minor girl or boy’. He stated:

   [Country 1] had a very strict law regarding sexual misconduct at this time. The younger daughter of the woman I was co-habiting with wanted her parents to re-unite and made a case against myself for sexual assault and her fathers' second wife for [an offence]. I was immediately placed under house-arrest and restrained from any contact with the minor daughters and the ex-husband of my then partner whilst the case was proceeding. The father believed the story of [the offence] and immediately divorced his second wife. I was kept working at home partly for my own safety as the father was distressed at the accusation of harm against his daughter. When the case finally came to court, under examination, the child admitted that I did not approach, groom, harm, touch, or have any sexual contact with her and that she just made up the story so that her parents would get back together. The judge immediately dismissed the case and I was released from house arrest to resume my life. There is no charge against me as the case was dropped.

   ·The applicant made claims that the visa cancellation process and his subsequent detention were not done in a lawful manner as he was of the belief that the day of his detention he was obtaining a bridging visa pending his review application;

   ·The applicant made claims that when he was transported to [the detention centre] he was placed in the [section] with convicted criminals. He claimed he was not told why he was placed in [this section]. He claims he was told four days after arriving at [the detention centre] that he was placed in the [this section] as he was considered to be a high flight risk.

   ·He further claims just moments before his appearance before the Administrative Appeals Tribunal on 12 December 2019, his lawyer said that he had received some paperwork regarding the reasons for him being held in [this section] at [the detention centre]. He claims his lawyer did not tell him these reasons but abruptly and without compassion made blunt and forceful accusations towards him.

   ·The applicant claims that his invitation to attend the [industry consultation] being hosted by [the authority] [in] March 2020 indicates that he is a person the government believes can bring something useful and positive to the country.

   [7] This claim was not substantiated.

5. During the hearing, the Tribunal was struck by the applicant’s presence and the confident manner in which he spoke. The applicant presented to the Tribunal as a highly intelligent person who was convinced that the explanations he provided were the only plausible explanation available. Despite the applicant’s confidence, the Tribunal was not convinced of his explanations, particularly in relation to his criminal record, given the absence of independent supporting information to support the applicant’s explanation when contrasted to the clear public record about the applicant’s criminal history and recent circumstances in [Country 1].

6. Repeatedly throughout the hearing, the Tribunal explained to the applicant that its role was to make findings of fact, and that any claims he made needed to be supported by independent evidence for the Tribunal to give them greater weight than the public record.

7. The Tribunal acknowledges the evidence of [Ms A], [Mr A] and [Mr B] and that in the case of [Ms A] and [Mr B] their evidence was corroborative of the applicant having [developed a process to produce product 1] and that the applicant had built a mini-prototype of this [process]. Critically, their evidence was not, in the Tribunal’s view, corroborative of the applicant’s explanation for his criminal convictions in [Country 1], although [Ms A] did give evidence he had told her early in their relationship that he was an informer for [the Country 1 Police].

8. As it stands, the Tribunal has taken verbal evidence from the applicant and received a written statement and an affidavit, however, it does not have before it any supporting corroborative information that the convictions recorded against his name on the [criminal history] check were only recorded to protect him from harm of those he had informed on.

9. In the post hearing written statement and subsequent affidavit provided by the applicant, he made further unsupported claims in relation to his claimed time as an informer and why he could not obtain documents, including: having been a priest in the [Church 1] and a business person of 30 years working with major companies, which were the major factors of him being asked to be a police informer; that the assertion that the key players had died who could attest to his time as an informer was true; and that too much time had passed and he was no longer in contact with other people who could provide support to his claims. The applicant also made an unsubstantiated claim that he headed [a charity] in [Country 1] during the 1980s. The applicant was put on notice in the hearing that in order for the Tribunal to accept any of his claims they needed to be substantiated and that his statements alone, whether in written or affidavit format were not likely to be persuasive.

10. The Tribunal has formed the view and finds that the applicant’s claims of being a police informer and that the convictions were not ‘true convictions’ are not plausible and it is not persuaded, given there is no corroborative information that in the Tribunal’s view outweighs the public record before the Tribunal in the form of the [criminal history] check.

11. The Tribunal therefore finds the convictions listed against the applicant for fraud on the [criminal history] check to be factual record, which the Tribunal relies on for making its findings that false and misleading information has been provided.

12. The applicant in his own testimony gave evidence to the Tribunal confirming that he was charged with fraud, went to court and appeared before a judge who passed a guilty verdict and he was sentenced accordingly. Notwithstanding the claims made by the applicant that he believed they were not true convictions, which the Tribunal has rejected, it finds that he still knew and was aware of the fact that he had been charged and convicted at the time he completed his visa applications.

13. The Tribunal further notes that the application forms for both the applicant’s Subclass 457 visa and Subclass 820 Partner visa, which have been reproduced and inserted into the delegate’s decision, specifically ask:

    has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?

14. The applicant made claims to the Tribunal that he believed that the convictions would have been removed, or not appeared on any official records. Given the question asked on the application form(s), the proper course of action for the applicant, in the Tribunal’s view, if answering as he claims on the basis he believes the convictions would not appear or would have been removed from official records, was for him to declare to the Department his claimed history as an informer and detail the circumstances regarding the convictions he received that he believed would not appear in, or would have been removed from, official records.

100.   The Tribunal notes that in the applicant’s post hearing statement he claims he was coerced into signing paperwork for his original Subclass 457 visa application and that he does not recall checking his subsequent Subclass 820 Partner visa application to ensure the details he provided were correct.

101.   The requirement in PIC 4020(1) applies whether or not the document or information was provided by the applicant knowingly or unwittingly. Therefore, the applicant’s claims relating to not knowing the information provided was incorrect as he didn’t complete the forms and/or check them for accuracy, does not cause the Tribunal to find that the applicant is not responsible and cannot be held accountable for false and misleading information he provided in those visa applications.

102.   The visa applicant was subject to PIC 4001 for his previously held Subclass 457 visa application, which was held in the 12-months prior to the lodgement of the Subclass 820 visa application. Additionally, PIC 4001 forms part of the assessment of this Subclass 820 visa application.  PIC 4001 provides:

Either:

(a)       the person satisfies the Minister that the person passes the character test; or

(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

(c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

(d)       the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

103.   Regarding the character test for the purposes of PIC 4001, a person does not pass the character test[8] if the person has a substantial criminal record.[9] For the purposes of this character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

[8] Character test is defined in s.501(6) of the Act.

[9] Substantial criminal record is defined in s.501(7) of the Act.

104. For the purposes of determining whether an applicant has been sentenced to a term of imprisonment of 12 months or more within s.501(7), it is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant: see Drake v MIEA (1979) 76 FLR 409 at 415-418. A sentence to a term of imprisonment which is suspended falls within the section: Brown v MIAC [2010] FCAFC 33 (Moore, Rares, Nicholas JJ, 20 April 2010) at [11]-[12].

105.   The applicant’s [criminal history] record demonstrates that he was sentenced to multiple prison terms in excess of 12 months, which is considered a substantial criminal record.

106.   The character test prescribed by law governs who Australia assesses as suitable to enter its borders. Those with a substantial criminal record would not usually be permitted to enter.

107.   Although the Tribunal is not making findings on the character test in this decision, it is of the view that the applicant would not likely have been granted a Subclass 457 visa if his convictions were declared, and that the grant of this visa to him was based, wholly or partly, on false or misleading information. On that basis, the Tribunal is of the view that the applicant gained an advantage by being granted a visa that he was not likely entitled to.

108.   The applicant’s answers regarding his past convictions on multiple occasions, in the Tribunal’s view, indicate that he was aware of this and has purposely and successfully, at least initially, provided false and misleading information to the Australian government. This is, in the Tribunal’s view, significant and serious and causes the Tribunal to find that the applicant was aware the information was purposely untrue, and by not declaring the convictions the applicant has engaged in deceptive conduct by providing false and misleading information.

109.   The Tribunal is aware that the applicant has pending charges against him and an outstanding arrest warrant in [Country 1]. The charges remain unproven and potentially instigated by an aggrieved ex-partner, as per the evidence provided by the applicant to the Tribunal. It is the role of the [Country 1] criminal justice system to determine whether the applicant is guilty or not of the charges, not that of the Tribunal. The Tribunal has also accepted that the applicant may not have been aware of these charges and arrest warrant when completing the applications for the Subclass 457 and Subclass 820 visa, therefore has not given the pending charges consideration in determining whether applicant does not meet PIC 4020(1).

110.   The applicant, in the affidavit provided to the Tribunal on 12 March 2020, addressed a charge relating to him. The applicant made comment regarding Case No: [number] — ‘Committing or attempting to commit an indecent act to a minor girl or boy’. The applicant conceded that this charge did go to court, however, he claims that the case was dismissed and there is no charge. This statement demonstrates that the applicant was aware of the fact that he had been charged with an offence when he completed his incoming passenger cards and subsequent visa applications. However, as no conviction was listed on the [Country 1 Police record] for this charge and neither the application forms for the Subclass 457 and Subclass 820 visa required the applicant to declare a historical charge where no conviction resulted, the Tribunal has not considered this charge as relevant for the determination of whether false or misleading information has been provided.

111.   The Tribunal finds the convictions listed against the applicant for fraud on the [criminal history] check to be a factual record, which the Tribunal relies on for making its findings that there is evidence that the applicant has given information that is false or misleading information in a material particular in relation to:[10]

[10] Clause 820.223 & PIC4020(1).

·Not declaring the convictions as listed in the [criminal history] check in relation to his application for a Subclass 820 visa and the material particular being the assessment of cl.820.223, which requires that he must satisfy public interest criteria (PIC) 4001;[11]

[11] PIC4020(1)(a).

·Furthermore, that he provided information that is false or misleading in a material particular by not declaring the convictions as listed in the [criminal history] check in relation to the Subclass 457 visa he held in the period of 12 months before the Subclass 820 visa application was made.[12]

[12] PIC4020(1)(b).

112.   Therefore, the Tribunal finds the applicant does not meet PIC 4020(1).

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

113.   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.

114.   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.

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

116.   During the hearing, the Tribunal discussed with the applicant whether there were any 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 an eligible New Zealand citizen that justify the granting of the visa. The Tribunal also discussed the policy considerations in regards to its discretion to exercise a waiver.

117.   The applicant requested the Tribunal consider his relationship with [Ms A] and her family, along with the contribution of his work and the potential benefit of his [products] and [Business 3] on the Australian economy and environment. Additionally, the applicant requested the Tribunal consider his monetary donations to charity. The Tribunal has considered these points and others not explicitly stated by the applicant and makes the following findings.

Compelling circumstances that affect the interests of Australia

118.   The Department’s guidelines suggest that there may be compelling circumstances affecting the interests of Australia if:

·     Australia’s trade or business opportunities would be adversely affected were the person not granted the visa (noting that gaining employer sponsorship is not considered sufficient grounds for a waiver); or

·     Australia’s relationship with a foreign government would be damaged were the person not granted the visa; or

·     Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.[13]

[13] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances – Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).

119.   The policy states that compelling circumstances affecting the interests of Australia would not include circumstances where the non-citizen merely claims that, if granted the visa, they would work and pay taxes in Australia, pay fees to an education provider or spend money in Australia.[14]

[14] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).

120.   The Tribunal is mindful that policy is not binding, further, that it must have regard to legislative requirements along with case law.

121.   Various judgments have considered claims based on employment in Australia and the ‘interests of Australia’. The judgments considering the meaning of this connote more significant, objective and public interest than that associated with mere employment in Australia.[15] While it is not the case that employment in a business in Australia could never amount to compelling circumstances affecting the interests of Australia, there is a distinction between the disadvantage to an Australian business in ‘losing’ an employee, and circumstances which affect Australia.[16]

[15] Deb v MIBP [2016] FCCA 3351 (Judge Nicholls, 22 December 2016) at [45], citing various other cases including Raza v MIBP [2015] FCCA 1623 and Kandel v MIBP [2014] FCCA 1479.

[16] Deb v MIBP [2016] FCCA 3351 (Judge Nicholls, 22 December 2016) at [56].

122.   The Tribunal accepts that the company [Business 3] established by the applicant and [Ms A] is constrained in its operations if the applicant is not able to participate day-to-day in its activities. The Tribunal also notes the email received from [Ms A] on 28 January 2020 detailing that the applicant’s detention is impacting on progressing operations and discussions with potential investors. However, the Tribunal notes that this company is yet to commercialise its only product, and the initial concept mini-prototype [technology] can’t be progressed to a full-scale functioning prototype until it is independently verified that it does produce [product 1]. The applicant claims that they have not sought peer review for the [product 1] production due to its current high market value and because there is a great deal of industrial espionage around this product and the process is not something they want too many people knowing until they have secured proper legal advice and patents. The Tribunal did not find this evidence of the applicant convincing for the reasons that follow.

123.   The applicant claimed at hearing that he had various patents registered to his name; however, the Tribunal notes that based on the information provided to the Tribunal, only initial patent applications have been lodged for the [technology] and the most recent were done so in January 2020, after the hearing. The Tribunal has no information before it that at the time of this decision any patent applications lodged by the applicant have been approved.

124.   Evidence has been supplied to the Tribunal, which includes email correspondence, between the applicant and potential investors who have shown initial interest in his [technology] concept. However, this evidence does not demonstrate that ‘multi-million’ and ‘billion’ dollar deals currently are or were being negotiated, as the applicant claimed in his oral evidence to the Tribunal. The information made available to the Tribunal indicates that investment in the range of tens of thousands of dollars has been discussed for initial investment to develop a prototype, but such proposals have not progressed further than initial discussion. The applicant has also not provided any evidence that he has an agreement or negotiations with the [state authority] as claimed and has not provided the Tribunal with any evidence or further explanation of how [number] jobs would be created by the commercialisation of his [technology] as the applicant claimed in his oral evidence to the Tribunal.

125.   The Tribunal notes that on 12 March 2020, the applicant provided an invitation he received to attend the [industry consultation] being hosted by the [authority] [in] March 2020; he claims that this invitation demonstrates that he is a person the government believes can bring something useful and positive to the country. However, the Tribunal rejects such an assertion; the invitation does not suggest that, merely it demonstrates he was invited to an information session on the basis of being an ‘interested party’.

126.   The applicant also claimed that he was not able to transfer the operations of [Business 3] to [Country 1], however, did not explicitly state why. The Tribunal acknowledges that re-establishing a business in another country would likely cause additional financial expense for the company, with the potential establishment of a new company structure. However, as the business is not at commercialisation stage, has not produced any revenue, and was being operated out of the applicant’s home at the time he was detained, the Tribunal considers such expense would be minimal.

127.   For the above stated reasons, the Tribunal is not persuaded that [Business 3’s] present operations or future forecasts, which are based on initial patent applications lodged for a concept [process] that is yet to be demonstrated and proven viable, amount to compelling circumstances that affect the interests of Australia.

128.   Further, the Tribunal is not persuaded that the [technology] itself generates compelling circumstances affecting Australia.

Compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen

129.   The Tribunal accepts that the applicant is in a spousal relationship with [Ms A], an Australian citizen, and the refusal of this visa impacts her.

130.   The Tribunal accepts that their separation whilst the applicant remains in detention is having an emotional and psychological impact on [Ms A] and if he was to leave the country, this would also have an impact on her. However, the Tribunal is not persuaded that their separation whilst the applicant remains in detention, or if he departs Australia, amounts to compassionate or compelling circumstances justifying the granting of the visa.

131.   The Tribunal further notes that [Ms A] has recently been referred to a psychologist by her general practitioner on 9 January 2020, with a copy of the referral being provided to the Tribunal. The referral outlines that she has previously been treated for major depression in 1990, was on antidepressants for 10 years and developed chronic insomnia in 1990, a condition which she still suffers from.  No psychologist report about [Ms As] current mental and emotional health has been provided to the Tribunal, nor any information about any current medication she may be taking. The Tribunal is not persuaded that [Ms A’s] historical mental health issues, and the insomnia she suffers from, would amount to compassionate or compelling circumstances justifying the granting of the visa as these are long standing, and she suffered from them prior to meeting and entering into a relationship with the applicant.

132.   The Tribunal accepts that the applicant’s detention has impacted the applicant’s ability to work in Australia and the lack of income affects [Ms A]. The Tribunal further accepts [Ms A’s] evidence that she is unable to pay the rent in the [Suburb 1] property without the applicant’s financial contribution, and that she has fallen into arrears with rental payments and will need to move to a smaller property. Documents pertaining to [Ms A] falling into arrears of rent have been provided to the Tribunal, including email correspondence between [Ms A] and the property manager. The Tribunal accepts this evidence. However, the Tribunal is not persuaded that her inability to pay the rent on a large property would amount to compassionate or compelling circumstances justifying the grant of the visa. [Ms A] was financially independent prior to entering a relationship with the applicant, although she may no longer be able to afford a large property without the applicant’s income, moving to a smaller rental property to reduce costs, in the Tribunal’s view, does not amount to compassionate or compelling circumstances justifying the granting of the visa.

133.   The applicant made claims that he was particularly close to [Ms A’s] adult son and that he played a significant part in his life. However, the Tribunal is of the view that the applicant’s portrayal of his relationship with [Mr A] was overstated. The evidence provided by [Mr A] and [Ms A], was the applicant and [Mr A] were fond of each other and got along well and contact would occur if [Mr A] was visiting his mother and the applicant was home. The Tribunal accepts there is a genuine connection between the applicant and [Mr A] and that [Mr A] does have a concern about the applicant’s personal circumstances, however, that concern is more for his mother’s well-being if the applicant was to leave Australia, which was the verbal evidence provided by [Mr A] at hearing. The Tribunal does not accept that the applicant has played a significant role in [Mr A’s] life, and as such is not persuaded that the relationship between them amounts to compassionate or compelling circumstances justifying the granting of the visa.

134.   The Tribunal accepts that the applicant has developed other meaningful relationships in Australia, including with [Ms A’s] daughter and in particular her father, who has provided a statutory declaration in support of the applicant and his daughter’s relationship. The Tribunal accepts the applicant’s evidence that his detention prevents him from seeing people he has meaningful relationships with such as [Mr A] and [Ms A’s] father in person. However, the Tribunal notes the applicant is not prevented from speaking to such people on the telephone while he is in immigration detention, as detainees are allowed the use of their personal mobile telephones whilst in immigration detention. Furthermore, if the applicant was to depart to [Country 1], he could continue to maintain personal relationships through telephone or other electronic means. The Tribunal is not persuaded that meaningful relationships cannot continue through telephone or other electronic devices and correspondence, as such, the impact of the applicant being detained, or having to return to [Country 1] would not amount to compassionate or compelling circumstances justifying the granting of the visa.

135.   The applicant claimed that [Ms A] could not relocate to [Country 1] because it would not be safe for her because [a large number of] women are raped there each month. The Tribunal does not accept this evidence as it is entirely unsubstantiated.

136.   Neither the applicant nor [Ms A] provided other reasons as to why [Ms A] may not be able to relocate to [Country 1] to be with the applicant if he was required to leave Australia. The Tribunal does, however, acknowledge that the upheaval involved for [Ms A] in potentially relocating to another country would cause her additional financial cost and could cause her emotional hardship by being separated from her adult children and her father, with whom, it is evident to the Tribunal, she is close, as per their evidence. However, the Tribunal is not persuaded that any potential relocation of [Ms A] to [Country 1] would result in compassionate or compelling circumstances justifying the granting of the visa.

137.   The Tribunal acknowledges that if [Ms A] were to relocate to [Country 1] it would have a direct impact on her adult children and her father. The Tribunal acknowledges, just as it would cause [Ms A] emotional hardship, it too would cause her children and father emotional hardship. However, their physical separation, in the Tribunal’s view, would not result in compassionate or compelling circumstances justifying the granting of the visa. They would be able to stay in touch via telephone and other electronic means and are also not prevented from visiting each other. The Tribunal acknowledges cost would be involved to visit family and travel internationally, however, that cost, in the Tribunal’s view, would not result in compassionate or compelling circumstances justifying the granting of the visa.

138.   If [Ms A] chose not to relocate to [Country 1], the Tribunal is of the view that the relationship could continue with the applicant. It would be open to [Ms A] to travel to [Country 1] to visit the applicant, and during periods of separation could continue to communicate through telephone and other electronic means. In the Tribunal’s view, if [Ms A] chose not to relocate to [Country 1] and remained in Australia, this would not result in compassionate or compelling circumstances justifying the granting of the visa.

139.   The applicant gave evidence at the Tribunal hearing of making regular monetary donations to various charities and has provided bank statements to support his evidence. The Tribunal accepts this evidence but considers the donations are not significant in their frequency or quantum and therefore reflect only a modest contribution to the community and do not amount to compassionate or compelling circumstances justifying the granting of the visa.

Other matters raised by the applicant

140.   The applicant made a number of claims about his personal circumstances that the Tribunal has turned its mind to. It should be noted, however, that these claims are not substantiated and they relate to the applicant personally and go towards the applicant’s narrative and do not amount to claims that affect the interests of Australia, an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen as is required by PIC4020(4)(b), therefore they cannot be considered for the purposes of a waiver. These claims include:

·His ex-wife, who he was currently going through a divorce process with, was spiteful and had made up allegations that he was inappropriate towards their daughter in order to gain exclusive custody of her;

·His ex-wife and ex-business associates in [Country 1], along with his initial Subclass 457 sponsor, conspired together in order to ‘steal’ the applicant’s intellectual property in regard to one of his [projects];

·His ex-wife and her associates were harassing him over social media; and

·He is owed money by his previous employers and they have done wrong by him;

·The visa cancellation process of his 457 visa and his subsequent detention were not done in a lawful manner as he was of the belief that the day of his detention he was obtaining a bridging visa pending his review application;

·He was placed in the [specified section] of [the detention centre] with convicted criminals and should not be housed with them;

·He would face harm by those who he claimed to have informed on if he was to return to [Country 1], and who were now in positions of power, including being [in senior roles].[17]

[17] As the Tribunal has rejected the applicant’s claim that his convictions were for the purpose of not revealing his identity to those he allegedly informed on, it follows that it also rejects the applicant’s subsequent claim that he was a police informer and those he allegedly informed on will cause him harm if he returns to [Country 1].

Conclusion

141.   The Tribunal has carefully considered all the circumstances of the applicant and the circumstances and claims as a whole that he has put forward in support of a waiver. However, based on the above written reasons and the cumulative claims, the Tribunal is not satisfied that there are 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 an eligible New Zealand citizen, to justify the granting of the visa.

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

143.   On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.820.223.

DECISION

144.   The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Cathrine Burnett-Wake
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. 

…