1932846 (Migration)

1932846 (Migration) [2020] AATA 4032 (23 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1932846
MEMBER:Christine Cody
DATE:23 July 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:
·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 23 July 2020 at 2:55pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – provided false and misleading information – failure to disclose his criminal record – waiver of requirement – compassionate or compelling circumstances – two Australian citizen children – genuine spousal relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 48, 65, 359, 362A, 375
Migration Regulations 1994, Schedule 2, cl 309.225; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Background – immigration history and relationships

The visa applicant, [Mr A], first arrived legally in Australia [in] May 2008 as the holder of a [student] visa, with a dependent applicant ([Ms B]), his then spouse. The visa applicant was divorced from [Ms B] [in] January 2013.
The visa applicant married [Ms C] (his second wife) [in] January 2013. The visa applicant applied for a UK 820/BS 801 partner visa on 4 February 2013 on the basis of his relationship with his second wife, which was refused on 28 March 2014. The refusal notification was found to be invalid, and the visa applicant was re-notified on 7 November 2014. His bridging visa expired on 4 December 2014 and he then became unlawfully present in Australia.
The visa applicant and his second wife were divorced (final order) [in] June 2016.
The visa applicant remained unlawfully present in Australia [from] December 2014 [until] March 2015, when he applied for a further UK 820/BS 801 partner visa on the basis of a de facto relationship with [Ms D]. That application was found to be invalid on the same day, due to a bar on lodging such a further application under s.48 of the Migration Act 1958 (the Act). The visa applicant applied for Ministerial Intervention on 10 March 2015, which was refused on 11 March 2015. The visa applicant remained on BVE's while awaiting his passport. He then applied for a protection visa on 1 April 2015, which was refused on 18 December 2015.
The visa applicant married [Ms D], who is his third and current wife, and the review applicant in these proceedings, [in] October 2016[1].
[1] The marriage certificate notes that the marriage was registered [in] November 2016
The visa applicant lodged an application for review of the decision to refuse to grant him a protection visa to the Tribunal (differently constituted). That Tribunal affirmed the delegate’s decision on 20 June 2017 (Tribunal file 1600407).
The visa applicant departed Australia [in] July 2017.
The current application
The visa applicant applied for a Partner (Provisional) (Class UF) visa under s.65 of the Act offshore on 21 September 2017 on the basis of his current relationship with the review applicant. A delegate of the Minister for Immigration considered the two subclasses (UF 309/BC 100) and refused to grant the visa on 27 September 2019 on the basis that the applicant did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the visa applicant did not meet Public Interest Criterion 4020 (PIC 4020). This was because it was found that he provided false and misleading information to the Department and there were not compelling and compassionate reasons for the grant of the visa.
The review applicant applied to the Tribunal for review of the decision on 19 November 2019. The issue in this case is the same as was before the delegate.
The Tribunal conducted the hearing by video (Australian participants) and telephone on 18 June 2020 due to the COVID-19 pandemic. The review applicant gave evidence and presented arguments. The Tribunal also received oral evidence from the visa applicant by telephone from [Country 1]. The agent participated by video and provided submissions. The Tribunal had received a late offer to take evidence from the visa applicant’s mother; instead a statutory declaration was provided. The Tribunal hearing was conducted with the assistance of an interpreter in the [Country 1] and English languages.
The Tribunal has decided for the reasons set out below, that on the single issue before it the matter should be remitted to the Department, who will then consider other criteria for the visa.
CLAIMS MADE TO THE DEPARTMENT
Background information about the applicants and the development of their relationship
The following claims are made in the visa application and sponsorship forms, and the visa applicant’s Form 80 (Personal Particulars) as well as statutory declarations provided to the Department:
·     The review applicant was born in [year] in [Country 2]. The review applicant came to Australia in 2003 and is an Australian citizen by grant. The review applicant was previously married to [Mr E] ([DOB)) [from] April 2011 until their divorce [in] May 2016. She sponsored him for a partner visa. There are no children from this marriage. The review applicant’s father, mother and brother all reside in Australia.
·     The visa applicant was born in [year] in [Country 1]. The visa applicant’s father, mother, [and siblings] reside in [Country 1], and one brother resides in Australia. The visa applicant does not have any children from his previous relationships.
·     The applicants first met on [a] dating website about 2 months before meeting in person. The applicants first met [in] September 2013 at [a location]. They began dating once a week. They committed to a shared life together [in] December 2013, which was the date that they started living together. Their relationship became stronger after they had their son, [Child 1] born [date]. After the review applicant became pregnant again, they decided to get married. The applicants then married [in] October 2016.
The Department file contains documents including a copy of the review applicant’s Australian citizenship certificate, a Victorian marriage certificate for the visa applicant and review applicant; a copy of the Victorian birth certificate for the applicants’ child [Child 1] and a photo of [Child 1]’s Australian passport; a photo of the Victorian birth certificate for the applicants’ child [Child 2], born on[date].
When the visa applicant returned to [Country 1] [in] July 2017, he took the child [Child 1] with him;[2] the child [Child 2] remained in Australia with the review applicant.
[2] Departmental movement records confirm this.
Claims made by the visa applicant in the current application concerning his criminal record
There are three documents provided to the Department in which the visa applicant asserts that he has not been convicted of any criminal offences in Australia:
·     In the visa application form, the visa applicant states ‘no’, in answer to the question ‘Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?’.
·     In response to character questions in the Form 80 that the applicant completed and swore to be true [in] July 2017, one day prior to leaving Australia, the applicant selects ‘no’ in response to the question ‘Have you ever been convicted of an offence in any country (including any conviction which is now removed from official records)?’.
·     The police check signed by the Co-ordinator of Criminal Records dated 15 August 2017 states that there are no disclosable court outcomes recorded against the applicant. This was supplied by the applicant to the Department (as it transpires, this Certificate was in error for, as far as the Tribunal knows, he did have (at least) one conviction).
As discussed below, the Tribunal has found that the information provided by the visa applicant is incorrect.
The issue and the law
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.309.225 for the grant of the visa. Broadly speaking, this requires that:
·     there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·     the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·     the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·     neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given, a bogus document or information that is false or misleading in a material particular? (PIC 4020(1))
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
The delegate’s consideration
The Department file contains various ICSE case notes and correspondence (including some covered by non-disclosure certificates) which suggest that the information provided by the applicant was incorrect. The file also contains a copy of an earlier Australian police check for the visa applicant dated 21 August 2015, showing that the visa applicant was convicted for ‘stalk another person’ [in] July 2011 and sentenced to an 18-month community order of 120 hours unpaid service.
The Department wrote to the visa applicant by way of letter dated 5 July 2019 setting out this adverse information. It noted that the visa applicant had stated that he has not been convicted of any offence in any country both in the application forms and in the Form 80 and had provided an Australian police check showing ‘no disclosable court outcomes’, but Departmental records indicate that the visa applicant had previously provided an Australian police check showing a conviction for ‘stalk another person’ on 21 July 2011 in support of another visa application. The Department noted that this indicates that the information he had provided with his current application regarding his character was incorrect, and that this was a material particular because his criminal history is considered part of the character test under PIC 4001. It was noted that PIC 4020 may apply; the visa applicant was given an opportunity to respond.
In response, the visa applicant swore an affidavit dated 25 July 2019, stating that he ticked the wrong box by mistake as English is not his first language, he is not well-qualified in English, and so he misread the question. It has been 7 years since he studied. Further, as the Department was already aware of ‘the stalking’ it is not logical to consider that he tried to mislead the Department.
The review applicant also provided a statutory declaration sworn 25 July 2019, stating that the visa applicant mistakenly ticked the wrong box due to misreading the question, that he did not mean to mislead the Department, and he is not a criminal.
The delegate’s decision
The delegate refused the application on 27 September 2019. The basis for the delegate’s refusal was that the visa applicant did not meet PIC 4020, as he had provided false or misleading information to the Department by ticking ‘no’ to the question ‘Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?’ on both the partner visa application form and in Form 80. This was because he had previously provided a police certificate on 21 August 2015 which indicates that he was convicted of a stalking offence ‘stalk another person’ [in] July 2011.
The delegate noted the visa applicant’s claim that he had ticked the box by mistake, and had misread the question, since English is not his first language. The delegate noted that the visa applicant had come to Australia in 2008 on a student visa, and had stayed in Australia for nearly 9 years. On this basis, the delegate was not satisfied that the visa applicant had misunderstood the question due to poor English, and therefore the visa applicant did not meet PIC 4020(1) as the visa applicant had provided false or misleading information.
The delegate also noted that, in their opinion, there were no compassionate or compelling grounds under PIC 4020(4) to warrant the waiver of PIC 4020(1). In this regard the delegate noted that the applicants’ son was overseas, and was of the opinion that there were no reasonable explanations as to why the review applicant has not made any attempt to join the visa applicant and her son in [Country 1]. The delegate also noted that there was no evidence of financial interdependency or cooperation between the applicants in regard to the children.
Non-disclosure certificates and files before the Tribunal
The Tribunal had before it a number of files, namely: the Tribunal’s case file relating to the current application for review (1932846), the Department file [number] (the initial partner visa application relating to this review applicant, made onshore, and found to be invalid due to the s.48 bar), and Department file [number] relating to the current visa application, the refusal of which led to the current application before the Tribunal.
The Tribunal also had before it the following Departmental files for which it had issued summons to the Department as the files were not files normally provided in relation to such an application for review before the Tribunal:
· [File number] – relating to the first partner visa application lodged by the visa applicant with a different sponsor (his second wife);
· [File number] – relating to the protection visa lodged by the visa applicant after the first partner visa application was s.48 barred.
The Tribunal also had before it the decision record of the Tribunal (differently constituted) dated 20 June 2017 (1600407) affirming the decision of the delegate not to grant the visa applicant a protection visa.
There were a number of non-disclosure certificates on the files before the Tribunal, as well as information generally relating to another person (the visa applicant’s second wife) and information from the visa applicant’s protection files which were not appropriate to disclose to a third person (the review applicant) in relation to her current application for review unless specific adverse information was to be relied upon by the Tribunal to affirm the decision under review. The Tribunal notes the following in relation to certificates issued in relation to two of the files:
· Department file [number]: There is a s.375A non-disclosure certificate which relates to folios 151–153, 169–170, and 174–175. The basis for the certificate for folios 151–170 is that they disclose lawful methods for preventing, detecting and investigating breaches of law and would prejudice the effectiveness of these methods, and the basis for 174–175 is that the information was provided in confidence to the Department. The Department issued a further s.375A non-disclosure certificate in relation to this file on 27 May 2020, relating to folios 127, 130, 131, 132, 133, 136 and 164. The basis for the certificate is that they disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law.
· Departmental file [number] (the partner visa file relating to the second spouse): The Department issued a s.375A non-disclosure certificate on 15 May 2020, relating to folios 28, 29 and 38. The basis for the non-disclosure certificate are that folios 28 and 38 disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law, and folio 29 may endanger the life or physical safety of a person.
The Tribunal considers the certificates to be valid. If the Tribunal had not decided to remit this case it would have put information to the review applicant pursuant to s.359A if required. The Tribunal did put some of the information at hearing relating to adverse matters.
Prior to the hearing, the agent had indicated that he had made a request to the Department of Home Affairs for the production of files under FOI but that their response was months overdue. In order to progress the matter, the Tribunal drew to the attention of the agent the provisions of s.362A of the Act. The agent then submitted a request pursuant to s.362A for ‘(1) All documents comprising the Dept [sic] of Home Affairs file in relation to this application including all correspondence with the applicant [Ms D] and her husband [Mr A]. (2) All documents submitted to the AAT in respect of the application for review of the decision to refuse to grant the partner (subclass 820 and 801) visas.’
An officer of the Tribunal provided documents from the Tribunal’s case file relating to the current application for review (1932846), the Department file [number] (the initial partner visa application relating to this review applicant, made onshore, and found to be invalid due to the s.48 bar), and Department file [number]. Folios 127–133, 136, 151–153, 164, 169–170 and 174–175 of the Department file [number] were excluded from release as they were subject to a s.375A non-disclosure certificate, while folios 36, 47–48, 53 and 76–77 on the file were excluded under Australian Privacy Principle 6 as they contained personal information about another person.
The Tribunal’s consideration of the issue of false and misleading information
Admission of 2011 offence and information about further encounters with the law

The agent provided documents and submissions to the Tribunal. It was accepted that a national police certificate in the visa applicant’s name dated [date] August 2015 and provided to the Department by him showed that he had been convicted of the offence ‘stalk another person’ [in] July 2011.
It was stated that since responding to the Request for Further Information in November 2018 he realised that there are other matters which should have been disclosed to the Department. He now realises that it is imperative to make the fullest and most accurate disclosure to the Department (and the Tribunal) with respect to any charge or conviction. He referred to the following matters:
·     2013 – drink drive – fine converted to community service work (he didn’t disclose this as he did not realise that driving offences need to be disclosed).
·     2014 – drive whilst disqualified – fine converted to community service work (he didn’t disclose this as he did not realise that driving offences need to be disclosed).
·     2013/2014 – court appearance [at a] Magistrates Court. He believes that there was a court appearance in relation to his second wife but he ‘cannot remember’ whether he was charged with an offence and convicted or not (emphasis added). His best recollection is that he may have been charged and convicted of assault but he is not certain of this or what penalty was imposed. If indeed he was charged and convicted, this should have been revealed on the national police check dated 21 August 2015. The visa applicant offers by explanation that he did not have an easy time with his second wife and he claims that her alcohol and drug abuse led to conflict between them.
·     18 November 2015 – assault, [a different] Magistrates Court. The visa applicant says that he ‘believes’ that there was an assault charge relating to an incident between himself and the review applicant (emphasis added). The review applicant said that she can recall not wanting the matter to go to court but otherwise neither of them ‘can recall the details’. This ‘didn’t come to his mind’ when he was completing the form.
Explanations for the failure to disclose his criminal record
The Tribunal has considered the various explanations offered by the visa applicant but does not accept them for the following reasons.
The visa applicant’s claim that his assertion of no criminal record was a mistake because of his poor English
The Tribunal does not accept this explanation for the reasons set out below.
Previous applications indicating fluency in English: The visa applicant came to Australia holding a student visa in May 2008 and claims to have successfully studied and completed a [qualification] in Melbourne from August 2009 until October 2011. Not only does this indicate that he had a working knowledge of English, in the time since then and prior to the completion of his forms where he claimed to have not understood the question about whether he has had charges or convictions, he has indicated a fluency in the English language. For example:
·     In his protection visa application form signed 1 April 2015 when asked for his languages, in order of reference, he firstly listed English (speak, read and write), and only secondly did he list his native [language].[3]
·     The visa applicant’s application for review form[4] (seeking a review of the delegate’s decision not to grant him a protection visa) was lodged with the Tribunal on 12 January 2016. In that form, he stated that he did not require an interpreter.
·     The visa applicant’s hearing with the Tribunal hearing his application for review of the delegate’s decision not to grant him a protection visa occurred on 16 June 2017 and was conducted in English. In the decision record, the member stated that:
The applicant appeared before the Tribunal to give evidence and present arguments, on 16 June 2017. The applicant stated he spoke fluent English, and during the hearing he did not tell me he had any difficulties with our conversation in English. Although he spoke with an accent, I understood what he said. At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.[5]
[3] DF21, [file number deleted]
[4] Tribunal file 1600407
[5] Paragraph 16, Tribunal’s decision record of 20 June 2017 (1600407).
The above indicates that the visa applicant’s level of English was at such a proficient level that he was prepared to attend before a Tribunal at a hearing and argue his protection claims in English. The Tribunal asked the visa applicant at the current hearing if he could recall that he gave evidence to the Tribunal in English and he said that he could not recall this. The Tribunal was not prepared to accept that, in the context of his argument as to why he did not disclose his criminal record being because his English is poor, he could not remember that he had chosen to give evidence at an important Tribunal hearing to determine his claim to face a real chance of serious harm if he had to return to [Country 1]. The review applicant confirmed that in 2017 she accompanied him to the Tribunal and that he gave evidence in English as did she.
The current partner visa application form: In addition, the Tribunal considers that the manner in which the visa applicant completed his forms also undermines his claims of his poor English. The Tribunal notes that the application form was completed and lodged online on 21 September 2017. In it, the visa applicant provided two pages of detailed information in English about the relationship. Other answers he provided showed a level of awareness of the English language (and of matters relating to migration) for example when asked if he had lived separately and apart from the review applicant at any time since committing to a shared relationship he stated ‘yes. Applicant has to leave Australia to apply partner visa for Australia because applicant has section 48bar which stops him to lodge onshore application….’ In answer to other questions in the section ‘Character declarations’ he provided responses in detail, for example when asked if he had ever overstayed a visa in a country he said that he had overstayed his visa in Australia and was not aware that he was overstaying his visa. And in answer to the question: ‘Has [the] applicant ever had any outstanding debt to the Australian government or any public authority in Australia?’ he stated ‘yes. Applicant have outstanding debt of $1675 to AAT which he will pay before 30 September 2017’. The visa application form has a declaration at the end: after the warning ‘giving false or misleading information is a serious offence’, the applicant then declares that he has read and understood the information provided in the form and that he has provided complete and correct information in every detail on the form and any attachments to it. Numerous warnings were given, which he stated he acknowledged, that if he provided false or misleading information or documents he may be refused a visa or a visa if granted may be cancelled. He also declared that if he became aware of any incorrect information, he would notify the Department in writing immediately.
The Tribunal put to the visa applicant that his inclusion of matters such as reference to the s.48 bar was complicated information, which did not suggest that he had problems in understanding English words. In response he said that they had seen lawyers in Australia and so he knew about the s.48 bar. The Tribunal is not persuaded that the visa applicant was not aware of the meaning of the questions in the application form.
Further, in his Form 80, he again declared his overstaying and outstanding debts to Australia in response to the character questions. Further, this form again contains a lot of detail provided in English, and the applicant signs a declaration on the form acknowledging that giving false or misleading information is a serious offence, and that the information he has supplied is correct in every detail.
The Tribunal put to him at hearing that it was difficult to accept the explanation about his English and he responded that he knew some things at that time, but not enough. Given the visa applicant claims to have had (at least one conviction), and as a result of this he was penalised and subjected to community service, the Tribunal is not prepared to accept this explanation.
The Tribunal put to the review applicant that the visa applicant had completed two forms with these incorrect answers concerning the criminal record. The review applicant agreed and said that this was because his English was not so good. The Tribunal put to her that this was difficult to accept. She said that she had asked him and he said he was in depression and stressed and he was not sure and it happened 9–10 years ago so he thought it was not on the record. This explanation for the visa applicant omitting to mention his criminal record was different to the visa applicant’s own explanation, and it undermines his explanation that he didn’t understand the question.
The prehearing submissions had stated that the visa applicant’s explanation of his lack of English was credible given he was not engaged in study or work for long periods in Australia and that the delegate’s inference about his English-speaking ability was not properly drawn. The Tribunal does not accept this inference insofar as it relates to the explanation before it. The Tribunal considers that all of the above undermines the visa applicant’s claims that his assertion that he did not have a criminal record was as a result of his poor English.
The visa applicant’s actions in subsequently correcting other errors in his application form
The visa applicant’s actions in subsequently correcting other errors in his application form indicate that he had reconsidered the contents of his application form, realised that it contained errors, and then corrected those errors. He did not, however, correct the errors in relation to his conviction.
On the Departmental file, prior to the date that the visa applicant was notified by the Department that it considered his application forms to contain incorrect information as to his criminal record, he lodged two ‘Notification of incorrect answers’ forms:
·a form ‘Notification of incorrect answers’ dated 4 March 2018, stating that the visa applicant mistakenly left out his children’s names from the application forms, listing their names, dates of birth, and that they are Australian citizens;
·a form ‘Notification of incorrect answers’ dated 4 May 2018, stating that the visa applicant did the application in a rush and left out that he has had other applications refused in Australia, namely a partner visa, protection visa, and two visitor visas.
This indicates that he had reconsidered the forms and discovered two different errors. The question that arises in such circumstances is why the visa applicant did not also correct the wrong information in relation to his criminal conviction.
The Tribunal asked about this at hearing. The visa applicant said that he did not recall but he thinks it was about the kids. The Tribunal asked what made him do those forms, and whether it was because he had read through the forms he had submitted again (and realised there were errors) and he said that he realised that he needed to amend the forms and tell the truth. The Tribunal put to him that he did not however amend the wrong answer about the criminal convictions. The visa applicant then claimed that he did not know what a conviction was (his new explanation is discussed further below).
When the Tribunal asked the review applicant why the visa applicant had lodged the Notification of incorrect answers forms on two occasions, she said that this was because he had read through the application form and he told her they contained errors and he had better correct them. The Tribunal asked her why he didn’t then correct the errors about the criminal record and she said words to the effect of ‘he thought that he ticked the right box and he thought the record has been from AFP, he decided to answer no, he didn’t inform me, he didn’t ask me about these documents’.
The Tribunal considered that if he had gone to the effort of correcting the form twice, it is reasonable to consider that he would have seen that there were references in the forms to “convictions”, and if he did not know what this this, he could have researched this when re-reading his forms. The Tribunal does not accept his explanations in this regard, and it considers that the failure to correct the information that he had no criminal conviction was deliberate.
The visa applicant’s previous acknowledgement of his criminal conviction
The visa applicant had, in his protection visa application form, completed by hand and signed by him on 1 April 2015, in response to question 87 as to whether he has ever been convicted of any offence in any country, stated ‘Stalking’, 2010, in Australia. There are additional references to this offence in this file.
In the circumstances, the Tribunal considers the visa applicant to be untruthful when he claims that, when completing the same type of questions in his forms for his current visa application, he did not know what the questions meant. Further, as noted above, the applicant had also previously produced a police check from 2015 which he provided to the Department which referred to his conviction. This also undermines his claimed lack of knowledge in 2017 that he had a conviction, given that he had provided the Police Check to the Department in 2015.
The Tribunal has considered the submission that because the visa applicant had already provided this information to the Department, he was not trying to mislead. The Tribunal does not find this persuasive given the weight of the evidence indicating that he knew he had (at least) one conviction, but that he denied it, twice, in this current application.
The visa applicant’s new claim to the Tribunal that he did not know what a conviction was, despite having previously declared it and having previously provided evidence of his past conviction
The Tribunal had also considered the explanation that he did the application in a rush. The Tribunal noted at hearing that on his evidence, he had made some 5 applications to the Department prior to making the current application. The Tribunal put to him that this would seem to have been an important application and he agreed. In the circumstances the Tribunal did not understand why he would not have taken care with it. In response the visa applicant claimed to the Tribunal that at the time he was filling out the forms (September 2017), he did not know what a conviction was. The Tribunal asked him to confirm that this was his claim and he agreed and said yes, he is not that good in English. As noted above, the Tribunal has not accepted his explanation about his poor English. The Tribunal put to the visa applicant that in April 2015 he had declared his past conviction and sentence, so it was difficult to understand his claim that he did not know what a conviction was some 2 years later. Further, he had actually attended court and been convicted of the offence of stalking in 2011 and he had had to undertake 120 hours of community service. In response he said at the time he was just fined and he did community service and he didn’t know it was considered a conviction. The Tribunal is not prepared to accept this explanation. The Tribunal considers that it would be difficult to forget having carried out significant community service, and it does not accept that the visa applicant did not know at the time he was serving a sentence for a conviction, nor that he did not know he had had a conviction for stalking.
The visa applicant told the Tribunal that he only found out what a conviction is 2 weeks ago, when he was researching it. The Tribunal put to him that the police certificate from 2015 which he provided to the Department states that he was convicted of an offence. He responded that he was concentrating on something else. The Tribunal did not consider that this was a satisfactory response.
Further, the submissions refer to additional encounters with the law by the visa applicant. The Tribunal notes that the driving offences are not referred to in the submissions as convictions, which, given he received a sentence, indicates they were. The Tribunal is not prepared to accept that the visa applicant, especially given these additional encounters with the law, did not know what a conviction was. The submissions acknowledge that the further disclosure of criminal matters may be seen to more strongly support the application of PIC 4020 and the Tribunal agrees with this.
There is a further reason why his assertion (that he only researched 2 weeks ago what a conviction is) is not credible. This is because his partner visa was refused on 27 September 2019 for the very reason that he had not declared his conviction. Given that this refusal meant that he was not able to join his wife and child in Australia, which he claims is a significant event affecting the whole family’s life, it is not accepted that he was only motivated to research what a conviction was some 9 months later, in about June 2020.
The Tribunal also notes that the visa applicant did not make this specific assertion (lack of knowledge of the meaning of the word conviction) to the Department in his statutory declaration in response to the adverse information letter. The Tribunal would expect him to have made this claim at that time (or even in the prehearing submission to the Tribunal) if this claim was true.
The Tribunal does not accept this explanation as credible, and this new assertion indicates that the visa applicant is prepared to tell untruths to the Tribunal.
The evidence generally about the visa applicant’s encounters with the law relating to harassment/violence
Both the applicants said at hearing that the stalking conviction from 2011 related to a woman who lived in the same street and she thought he was stalking her and called the police (the review applicant did not know the visa applicant at this time).
After referring to this conviction, the visa applicant was asked at hearing whether he had any more problems with the police and he said no. The Tribunal repeated the question and he then said that he had encounters twice with the police, relating to his second wife and relating to his current wife.
Second wife: The submissions state that the visa applicant thinks that he ‘may have been charged and convicted of assault’ but he was not sure. At hearing, when the Tribunal asked whether he was charged or convicted of an offence relating to his second wife, he claimed that he could not recall as it happened in 2013 although he recalls he went to court. The Tribunal considers the visa applicant’s claim that he doesn’t recall what happened, in the circumstances where he was accused of assaulting his second wife, to be not credible.
The review applicant said that she was dating him at that time, they were having an affair. She was aware that someone called the police to have him charged with assaulting his second wife. When the Tribunal asked what happened with the charges, she said that he had to go to court. She then claimed she doesn’t know the result of the charges. When asked why not, she said because it was between those two. The Tribunal does not find her response to be persuasive given the claim that they were involved at that time and a short time later they committed to spending their lives together. Further, her response suggests that subsequently she has never asked him, which is not credible given the relationship between his criminal record and the refusal of the visa which would allow him (and thus her son) to come to Australia.

The Tribunal does not accept that the applicants have given truthful evidence as to their knowledge and recollection about what happened when the visa applicant went to court having been accused of assaulting his second wife.
The review applicant: The submissions referred to the visa applicant appearing at [a] Magistrates Court [in] November 2015 charged with assaulting the review applicant.
Not only did the visa applicant have a lack of recollection as to what happened when he was accused of assaulting his second wife, but he gave a similar response when the Tribunal asked what happened with his current wife. When asked, the visa applicant told the Tribunal that they had a horrible argument and she called the police. When asked what then happened, he claimed that he didn’t recall. The Tribunal put to him that this was difficult to accept, and he said, ‘it’s up to you’. When asked if he had to go to the police station, the visa applicant said he can’t recall going to the police station, but he recalls going to court. The Tribunal noted that he had just said that he could not recall what happened, but now he could recall going to court.
He then claimed that the review applicant left their child at the police station and they had a verbal argument and he was angry. When the Tribunal asked why she would leave their son at the police station, he said he could not give an answer.
The Tribunal asked the review applicant what occurred, and she said they were at home with their child and there was an argument and they were screaming at each other and they heard a large noise and the police came to the house. She said that it had got out of hand and at that time he was drinking and he ‘whacked me on the shoulder’. The police took their details and said they would consider if he should be charged and then one of the constables said they wanted to charge him and they sent him a notice of charge and he had to attend court. She was not required to attend court, only him. The review applicant claimed that he didn’t tell her the charge result. The Tribunal asked why not, and she said that they didn’t talk to each other after that, they lived in separate rooms. The Tribunal asked whether there was an assault charge against the child, and she said that it was just a first warning. The Tribunal asked for clarity as to whether there was any order or conviction made in relation to their child. The review applicant did not admit to any knowledge of the result of any proceedings at court. The Tribunal put to her that it had seen an intervention order for the protection of both herself and the child.[6] This order was made [in] March 2015 at [a] Magistrates Court. It specifies that the visa applicant was at court, and an order was made that he not commit family violence against the protected persons, namely the review applicant and the child [Child 1]. In response the review applicant gave some vague evidence that a child protection officer had been sent to see her but she can’t recall all these things. The Tribunal put to her that it was difficult to accept that she could not recall or did not know that an order had been made for the protection of her child and herself against the visa applicant. The Tribunal put to the visa applicant that the review applicant claimed not to know about this order which was difficult to understand if they were in a relationship. The visa applicant then changed his evidence and said that maybe she doesn’t know about it, he is not sure.
[6] Departmental protection visa file.
The Tribunal did not consider that the applicants were open and honest about their knowledge and recollection of the encounters with the criminal justice system. Specifically in relation to convictions, the Tribunal considers that other than the offence of stalking in 2011 (for which there is clear evidence of a conviction in the form of the 2015 police certificate and the visa applicant’s subsequent (and prior) admission of this conviction), there is a lack of clarity as to whether there are any other offences for which the visa applicant has been convicted.
Conclusion: The Tribunal finds that there is evidence before the Tribunal that the visa applicant gave to the Department ‘information that was false or misleading in a material particular’ when stating ‘no’ in answer to the question ‘Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?’ in his visa application form and when stating ‘no’ in response to the question ‘Have you ever been convicted of an offence in any country (including any conviction which is now removed from official records)?’ in response to character questions in the Form 80. This is because he had been convicted of the offence of stalking in 2011. The Tribunal finds that the information was false and misleading at the time it was given in relation to the current visa application, and that this was relevant to the character criteria the Minister may consider when making a decision on an application. The Tribunal finds that the false and misleading information was given knowingly by the visa applicant, and it does not accept any of the explanations which suggest otherwise.
Therefore, the visa applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in 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.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
For the following reasons, the Tribunal is satisfied that the requirements should be waived.
Interests of Australia: There is no information which would indicate there are any compelling circumstances that affect the interests of Australia that would justify granting the visa to the applicant.
Interests of Australian citizens: The Tribunal accepts, as does the Department, that the review applicant and her two children are Australian citizens, and that the visa applicant is the father of those two children.
It was submitted to the Tribunal that there were the following compelling or compassionate circumstances that affect the interests of an Australian citizen (the specific citizen was not identified although can be inferred): there has been a committed exclusive relationship between the applicants over seven years [since] December 2013; they have two Australian citizen children; their son [Child 1] needs continuing treatment to [specified condition] which he is not receiving in [Country 1]; their separation was not a matter of choice but was compelled by the visa applicant’s visa status; the review applicant is living in Australia on a Centrelink pension and caring for their daughter while the visa applicant is living in [Country 1] with his parents and caring for their son in [Country 1]; neither have the financial resources to fund travel by the review applicant to be with the visa applicant in [Country 1]; the couple communicate with each other regularly by telephone and [social media] communication; despite the review applicant’s limited financial means, she contributes money towards the visa applicant’s and [Child 1]’s living costs in [Country 1]. It is submitted that both children have, under Australian law, the right to have contact with both parents, and this can be satisfied by granting the visa applicant a partner visa so he can return to Australia with his son.
The submissions state that since the visa applicant met the review applicant and they have had their two children together his life has become so much better and he has matured. He recognises that he was irresponsible which led to him breaking the law and he deeply regrets his foolish actions in the past.
The review applicant told the Tribunal that it is very much in the two children’s interests that their father’s visa is granted in order to reunite brother and sister and father and mother. She said that it is the first time she has been away from her son. She has daily contact with her son, the visa applicant has daily contact with his daughter, and the applicants also contact each other every day through various methods of internet communication.
The review applicant’s mother provided an outline of evidence confirming the relationship and referring to the children of the relationship. She said that after the birth of [Child 1] they lived with her so she could assist with the new baby who had a [medical condition]. She considers that the visa applicant is a devoted father and spent a lot of time helping her daughter care for the child. She considers that they had a loving relationship; like all couples they have had problems but they have overcome them and they continue to be committed to each other and the children. She attended their wedding and after the second child was born she lived with them for a while. Since the visa applicant and child have been gone she is aware that the applicants speak almost every day. It is hard for them to be separated and she supports the grant of a partner visa. The Tribunal notes that additional supporting documentary evidence was provided to the Tribunal as to the nature of the relationship, as well as in relating to the claim of compelling and compassionate factors.
In this case, there are a number of criteria which must be considered by the Department in deciding whether or not to grant the visa. The Department has, at this stage, only made findings on one of the criteria, namely cl.309.225 (the requirement to meet PIC 4020). The Tribunal considers that it is not its role to address and make findings on all of the criteria necessary for the grant of the visa nor to weigh up or balance certain factors in order to ascertain whether the visa should be granted.[7] Its role is to consider whether there are compelling and compassionate factors which would justify the grant of the visa to the visa applicant (provided that the other criteria are met, as will be determined by the Department).
[7] The Tribunal also notes paragraph 8.2 of the President’s Direction – Conducting Migration and Refugee Reviews, 1 August 2018
It is clear from notes found on the Department’s file that the delegate made a conscious decision to only address the criterion in cl.309.225 (the requirement to meet PIC 4020). The delegate did not make findings as to the other criteria, in particular there was no finding made by the delegate as to whether the applicants are in a genuine relationship. Similarly, the Tribunal has not made a finding as to whether or not the relationship between the applicants has been a genuine spouse relationship as defined, at the relevant times, noting that their relationship is the crux of the application. The Tribunal considers that if it were to usurp the delegate’s role in deciding that question, it would effectively be denying the visa applicant the opportunity for the delegate to consider this criteria, and then for merits review if there was not a positive decision.
The Tribunal notes that there are a number of issues that have arisen which cause some concern about the relationship:
·     In the delegate’s decision record refusing to grant the protection visa application, it was noted that while the birth certificate for the son indicates that he was born in Sydney and that the review applicant was living in Sydney, the delegate noted that the visa applicant had resided in Melbourne during his stay in Australia. The delegate considered that this indicated that the applicants had not been living together.
·     A further concern about their living arrangements arose around the time of the intervention order relating to the applicants. As put to the review applicant, there is information that she told the police that she was living with another couple and not with the visa applicant.[8] In response the review applicant said that they had both been living with another couple but the visa applicant didn’t live with them for 1 day as one of the child protection officers said that he should leave because it is not safe for the child. The Tribunal asked why they would say that. She said because he was drinking, and he talked very rudely and he started arguments and it is not safe for the child. The Tribunal asked the review applicant why then she would allow him to take the child back to [Country 1] with him and she said that the child loves his father very much and it is difficult for her to look after both of them. The Tribunal asked whether she had any worries about the safety of the child and she said that of course she had worries as the child was going to a new place, to a new house, but the way his parents look after [Child 1], he looks healthy and well. The Tribunal explained that it was asking about her concerns for [Child 1]’s safety before they left for [Country 1]. She said that he promised her he had stopped drinking and would stop talking rudely so she let him take [Child 1] with him. The information did not specify the period of time that the review applicant had told the police that they were not living together, but the impression was that it was for a period longer than 1 day. The Tribunal notes that when asked, the visa applicant claimed that he had never lived separately and apart from the review applicant while he was in Australia.
·     A further concern relates to credibility and claims that the visa applicant is prepared to make. In this regard, as noted above, the Tribunal considers that the visa applicant was prepared to tell untruths in relation to his failure to disclose his previous conviction and when explaining this omission to the Department and the Tribunal. Further, the visa applicant made protection visa application claims[9] that if he returns to [Country 1] his community will harm him and his family, and that his family will kill him and ‘they do not accept us’. In the current proceedings, the Tribunal noted the evidence that the visa applicant and his son are living with his parents. The visa applicant told the Tribunal that his family knows about his child who lives with him in [Country 1], as well as about his wife and child back in Australia. When asked who knows, he said everyone knows. He takes his child to be introduced to family members and everyone likes his child. The Tribunal put to the visa applicant that he had claimed in a previous application that his family would kill him for having a mixed-race marriage and child. The visa applicant agreed that he had said this in the protection visa application. He agreed that he had claimed that “people” could kill him. The Tribunal put to the visa applicant that he had claimed in that application that his family would kill him, whereas he had presented very different evidence in relation to his family’s awareness of and acceptance of his mixed race marriage and mixed race children in the current proceedings. The visa applicant did not seek to comment on this. The above indicates that the visa applicant was prepared to adapt his claims depending upon the application being made.
[8] Departmental file [number deleted], folio 152 subject to s.375A certificate.
[9] Refer to protection visa files (Departmental and Tribunal)
On the other hand, there is evidence which could support that there has been, at least some of the time, a genuine relationship between the applicants, including the birth of two children. The agent’s submission referred to Departmental notes of 9 April 2019 where the Departmental officer was quoted as saying that: the visa applicant had provided sufficient evidence as to the social aspects of the relationship, there is substantive evidence that the applicants were in contact during the period of commitment, and further they have two children from the current relationship who are Australian citizens.
The Tribunal has not, for the reasons set out above, made a finding on that particular criteria. The Tribunal does, however, accept that there are two Australian children, siblings aged [age] and [age] years who are separated from each other, and that there is an Australian citizen mother who is separated from her [age]-year-old son, and has been for 3 years. The Tribunal is satisfied that this provides compassionate or compelling circumstances that justifies the granting of the visa to the visa applicant.
In these circumstances, the requirements of PIC 4020(1) should be waived.
Conclusion
On the basis of the above, the visa applicant does satisfy PIC 4020 for the purposes of cl.309.225.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:
·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.
Christine Cody
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.
…

[2020] AATA 4032

23 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction