2107016 (Migration)

2107016 (Migration) [2022] AATA 2250 (11 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)
CASE NUMBER:  2107016
MEMBER:Jennifer Cripps Watts
DATE:11 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·Public Interest Criterion 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations

Statement made on 11 May 2022 at 3:53pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties provided false or misleading information – applicants failed to disclose details of a previous relationship and subclass 300 visa application – compassionate and compelling circumstances in this case – sponsor’s mental health – requirements of PIC 4020(1) or (2) waived – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.226
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 May 2021 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 April 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 820.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) which requires an applicant to meet, among other things, Public Interest Criteria (PIC) 4020. The delegate was not satisfied the applicant met PIC 4020.
The applicant appeared by MS-Teams video before the Tribunal on 10 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, [Mr A], who is the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. At her request, the applicant only sought assistance from the interpreter when she felt it was necessary. Her English was very good and the applicant sought assistance only a couple of times. The applicant’s representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. Relevant to this case, 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, 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 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.
The reason the visa was refused, the requirement that the applicant must meet all primary criteria for the grant of the visa and an explanation about PIC 4020 and the giving of false or misleading information in a material particular were discussed with the applicant and sponsor at the beginning of the hearing.
Has the applicant given information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(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.
The requirement in PIC 4020(1) not to provide false or misleading information applies whether or not the Minister became aware of the 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 information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, there must be an element of fraud or deception by some person.
At the time of this decision, the parties do not dispute that false or misleading information, in a material particular, was given to a relevant specified person relating to the visa application. They now understand that details of a previous relationship and subclass 300 visa application that was made in 2014 should have been declared in the visa application.
The Tribunal spoke to the applicant and sponsor at the Tribunal hearing at length about their claimed spouse relationship, the visa application and the circumstances relating to why they did not disclose that the sponsor and a previous partner had applied for a subclass 300 visa. The sponsor does not dispute that the subclass 300 visa application was made and that he was the sponsor. However, the Tribunal accepts that the sponsor thought he had not sponsored anyone previously because the subclass 300 visa was refused.
The parties were both considered to have been credible in their presentation at the Tribunal. They each gave spontaneous and cogent answers to questions they were asked. The applicant was quite emotional and a bit overwhelmed by the review process and it was appropriate, in their circumstances, to speak to the parties together and have answers given mostly by the sponsor.
While not directly related to the question of whether false or misleading information was given, the Tribunal still needed to consider, before a decision was made, evidence the applicant wished the Tribunal to consider relating to a waiver of the requirement that she satisfy PIC 4020(1) and whether there are any compelling or compassionate circumstances that would affect an Australian citizen, permanent resident or eligible New Zealand citizen.
The parties provided a recent report from the sponsor’s psychiatrist, Dr [B], signed and dated 29 March 2022. In seeking to gain some insight into whether there appeared to have been any deceit or fraud on the part of the parties, in not declaring the information about the sponsor’s previous relationship and as the sponsor in the subclass 300 visa application that was refused in 2015, the sponsor was asked to tell the Tribunal about his mental health and treatment he had received. The report of Dr [B] includes that the sponsor has been seeing him since October 2021 and ‘at regular intervals’ since then, and that the sponsor had been seeing another psychiatrist, Dr [C], but that practice closed ‘last year’, which the Tribunal takes to be 2020. Dr [B] includes that the applicant:
·suffers from ‘severe symptoms of obsessive-compulsive disorder along with anxiety and depressive symptoms’
·is being treated with [medications] and follows up
·also suffered from ‘depressive symptoms after the death of his parents and was on [medication] for couple of years’ and was seeing a psychologist
·has worked at [Workplace 1] since 2002 and that recently his workplace placed him on sick leave due to concerns about his mental health
The applicant and sponsor (the parties) applied for the subclass 820/801 partner visa that is the subject of this review on 12 April 2019. A copy of the primary decision record was provided to the Tribunal with the review application. Information relating to the false or misleading information in their case is set out in the primary decision record.
In the online visa application, it was declared by the parties that [Mr A] had been in a relationship previously with [a named person]; they were married on [date] October 1998 and divorced in mid-2014. What was not included, even though there were questions requiring the sponsor to do so, was information about any other relationship or sponsorship application. The sponsor and [Ms D] applied for a subclass 300 visa in 2014; it was refused in 2015. The sponsor and applicant did not continue with the relationship after that.
The Tribunal has had regard to the information provided in the sponsor’s 40SP form in support of the visa application, signed and dated 12 April 2019. Below are questions and answers in the 40SP form material to the substantive issue on review:
Q.29.Have you previously sponsored/nominated a spouse, de facto partner, prospective spouse (fiancé(e)) or interdependent partner?
A.No. (there follow fields, if the question was answered ‘Yes’, to enter ‘How many times’, date of the application, name of the person sponsored, any other names they have been known by, their date of birth, relationship to the sponsor, where the sponsorship or nomination was lodged, whether the visa was granted and/or when the relationship ended and how the relationship ended. No information was included by the application in this question 29. subsection, these sections were left blank)
It is included in the primary decision record that the ‘sponsor had been in a relationship with one other person ([Ms D]) and sponsored this person as his prospective spouse to Australia in 2014’. At the hearing, the sponsor gave oral evidence explaining the circumstances surrounding the relationship, the subclass 300 visa application, the refusal of the visa and that the relationship ended, having only been short lived.
As mentioned earlier, the parties do not dispute that the sponsor lodged the subclass 300 visa application with [Ms D] in 2014; it was refused on 13 January 2015. The Tribunal accepts that the sponsor, in his Form 40SP, did not think he had sponsored her because the visa was refused. In answering ‘no’, it appears that the sponsor turned his mind to the question of whether he did or did not sponsor her; that is, he gave it some thought before answering ‘no’. In summary, a subclass 300 visa, if granted, requires the parties, as a condition subsequent to the granting of the visa, to marry within a prescribed period of time. It is not necessarily an impediment to being granted a subclass 300 visa that the parties do no know each other well, depending on the particular circumstances of a particular case. It appears that this was the case in the subclass 300 visa application made by the sponsor and [Ms D]. After the visa was refused, they decided to end the relationship.
What is of concern is that in answering ‘no’ to question 29. the sponsor has not then gone on to answer questions that would have provided correct or accurate information about the status of any previous partner visa application where he was the sponsor. There is a question that asks, ‘Was the visa granted’. As the sponsor in the subclass 300 visa application, the sponsor in this current matter was, in the view of the Tribunal, required to provide this and other clarifying information relating to the 2014 visa application with his previous partner.
The Tribunal accepts that the sponsor may have been confused or unsure about whether or not he had sponsored a previous person from the question, ‘Have you previously sponsored/nominated a spouse, de facto partner, prospective spouse (fiancé(e)) or interdependent partner?’. However, it is reasonable to think that the parties would have given proper attention to each of the fields left blank for the purpose of giving answers to questions in the Form 40SP. With reference to the question, ‘Was a visa granted?’ (within q.29 relating to any previous sponsorships) it is reasonable to think that at this point the sponsor would have realised or known he was required to include the information. The visa was refused, or not granted, on 13 January 2015. The information should have been provided by the sponsor in the Form 40SP.
Notwithstanding the sponsor’s confusion relating to the primary question in q.29 of the Form 40SP, in answering ‘no’ and then omitting to include information as to the date of application and refusal of the subclass 300 visa, the Tribunal finds that the applicant has given was false or misleading in a material particular. The information relates to the sponsor’s previous sponsorship in a subclass 300 visa application and was omitted from the Form 40SP given by the applicant in relation to her subclass 820/801 visa application. The material particular is the genuineness of the spouse relationship which must be met by the applicant to satisfy primary criterion cl.820.211.
Therefore, the 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 reg 1.03), that justify the granting of the visa.
For the following reasons, the Tribunal is satisfied that the requirements should be waived.
A claim of 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 was discussed at length and in some detail with the parties at the hearing. The sponsor is an Australian citizen.
The contents of a recent letter or report, dated 29 March 2022, from the sponsor’s current treating psychiatrist have been mentioned earlier. In summary, the sponsor suffered from depressive symptoms when his parents died, around 2008, and was prescribed [medication] for a couple of years and saw a psychologist; he suffers from severe symptoms of obsessive-compulsive disorder, anxiety and depression; he is being treated [and] regularly sees a psychologist; he was required by his employer, [Workplace 1], to take several weeks’ leave because they were concerned about his mental health.
The parties had not provided much else by way of written submissions and it was important to gain an understanding of their circumstances, particularly relating to the sponsor’s particular needs and vulnerabilities, for the purpose of considering the waiver. The applicant was quite nervous, so the parties were told they could choose which one of them would give evidence about why there were compassionate or compelling circumstances that affect the sponsor that justify granting the visa. They decided, and the Tribunal considered it appropriate, that the sponsor would give oral evidence relating to the waiver.
Compassionate and compelling circumstances – oral evidence of the sponsor
The sponsor was previously married, from 1998 to 2014. In 2002 he started work at [Workplace 1], night filling the shelves. In 2008 his parents died a couple of years apart and he suffered badly from depression as a result. He took anti-depressants for about two years. He stopped taking the medication because he felt better and more recently he has been [working]. This is considered ‘light duties’. The sponsor said that fairly recently some customers had noticed him talking to himself and complained about it, so his employer placed him on sick leave for six weeks. These matters are consistent with the information included in the report of the sponsor’s treating psychiatrist.
The sponsor said that he gets moral, emotional and financial support from his wife. He works part time and his wife works full time. The applicant added that previously the sponsor has supported her financially and that now she is happy to do the same for him. When the applicant and sponsor were talking about committing to marriage, the sponsor was worried that he lived in a very modest studio apartment. Now they both work, it appears they pool their finances and rent a They go out together on the weekends for a drive, to [locations] for example; the sponsor does the driving as the applicant doesn’t drive; they visit the sponsor’s friends. The sponsor added that the applicant is a member of a [social media] site for the Filippina community in their area and they socialise through this as well. The applicant doesn’t have any relatives in Australia, but has work friends and the sponsor knows them.
The applicant has [qualification] and works full time as a [occupation]. She worked in the same [workplace] for two years until the floods in early 2022. That particular [workplace] closed because of the floods and they offered the applicant a position in another of their [branches], but quite a distance from where she and the sponsor live. The applicant managed to find a casual [position] closer to home. The hours the sponsor works at [Workplace 1] are 5:30pm to 9:30pm. He said that while his wife was between jobs he found it really comforting to have her there with him during the day. She makes him feel better.
When the sponsor visits his psychiatrist, the applicant goes with him. At the hearing she was asked why and said it is because the sponsor forgets to tell the psychiatrist things if she doesn’t go with him. The applicant said, and the sponsor agreed, that it is better for him when the applicant goes with him to see the psychiatrist.
The sponsor said he suffers from arthritis and has had operations on his arm. He said that if the visa is refused, going back with his wife to the Philippines would present difficulties for him because he’ll struggle not speaking Tagalog and won’t be able to get a job. He said if his wife has to return to the Philippines he will ‘go downhill very quickly’, they ‘love each other so much’ and he might have thoughts of self-harm. This was said spontaneously and had not been raised before. The Tribunal asked the sponsor whether he had any previous incidents where he considered, or did, self-harm. He said that he had. In around 2014 he expressed such feelings to his ex-wife. They had officially separated but were still residing in the same residence they shared while together; she called an ambulance and he was hospitalised.
The sponsor did not embellish or exaggerate his story. He gave concise, factual and relevant evidence, and answered questions spontaneously, about his health and his dependence on the applicant and what it would mean to him if her visa was refused. The Tribunal, while making no findings about the spouse relationship, was left with the impression that the parties have made a life for themselves as a married couple. They have moved into a new apartment, they share their finances, socialise together as a married couple and provide each other with companionship and emotional support.

The Tribunal is satisfied that there are compassionate and compelling circumstances in this case that justify the granting of the visa.
Therefore the requirements of PIC 4020(1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There is no information in the Department file or before the Tribunal indicating that the applicant has not met the identity requirements.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no evidence before the Tribunal that indicates the applicant or any member of her family unit has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).
Therefore PIC 4020(2B) is met.
Conclusion
On the basis of the above, the applicant satisfies satisfy PIC 4020 for the purposes of cl 820.226.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·Public Interest Criterion 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations
Jennifer Cripps Watts
Senior 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.
…

[2022] AATA 2250

11 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice