2116103 (Migration) - [2025] ARTA 520

2116103 (MIGRATION) [2025] ARTA 520 (11 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2116103

Tribunal:General Member J Owen
Place:Sydney
Date: 11 March 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
I, General Member J Owen certify that this is the
Tribunal's statement of decision and reasons
Statement made on 11 March 2025 at 3.00pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – applicant did not satisfy Public Interest Criteria (PIC) 4020 – bogus document or false or misleading information – relationship had ceased by the time the Partner visa application was lodged – relationship with his two Australian citizen sons – no compelling reasons that affect the interests of Australia that justify exercising the waiver and granting the visa – PIC 4020(1) requirements should be waived – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 359, 375
Migration Regulations 1994, r 1.03 Schedule 2, cl 820.226
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Vyas v MIAC [2012] FMCA 92
Any references appearing in square brackets indicate that information has been omitted from
this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act
2024 and replaced with generic information.

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 18 October 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 is a [age]-year-old male Lebanese national. The applicant applied for the visa on 6 September 2018 on the basis of his de facto relationship with the sponsor, Ms [A], an Australian citizen. 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) because the applicant did not satisfy Public Interest Criteria (PIC) 4020(1).
PIC 4020 (1) requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister or other officer bogus or information that is false and misleading in a material particular in relation to the current application or a visa that the applicant held in the period 12 months before the application was made. The evidence before the delegate was the applicant had provided false or misleading information, or bogus documentation in his September 2018 visa application. The delegate noted that in the applicant’s application form he stated he had been in a de facto relationship with the sponsor since 1 June 2008, and had separated from the sponsor a number of months prior to lodging his application. He stated it was before the Courts to reconcile and fix the relationship. The delegate however had received information that the applicant had not in fact been in a relationship with the sponsor since 2014/2015, and he had lodged the Partner visa application in September 2018 without the sponsor’s knowledge or consent. The delegate put this adverse information to the applicant under the usual provisions. In his response the applicant denied the contentions that he was not in a partner relationship with the sponsor at the time of application, and stated he was in fact in a de facto relationship at the time the application was lodged. The applicant claimed he was responsible for the [children] of the relationship. The delegate noted that no evidence was provided that either supported the applicant’s contention he was in a genuine de facto relationship with the sponsor at the time of application, nor was the matter that he had lodged the application without the sponsor’s consent addressed satisfactorily. The delegate concluded the applicant had provided, or caused to be provided, a bogus document or false or misleading information in relation to the Partner visa application and subsequently did not meet PIC 4020(1). The delegate noted that the applicant provided no information seeking a waiver of the criterion on the basis that there were compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.
The delegate in his decision found that the applicant did not meet the PIC 4020(1) criterion, and having considered the evidence before him, he was not satisfied there were compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen to satisfy the waiver provisions. The delegate found that the applicant did not satisfy PIC 4020(1), and subsequently did not meet cl 820.226.
The applicant appeared before the Tribunal on 17 December 2024 via MS Teams to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former spouse Ms [A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
s375A certificate
On 19 December 2024 the Tribunal wrote to the applicant through his representative noting a certificate had been issued by the Delegate under s.375A of the Act purportedly restricting the Tribunal from disclosing certain information in the Departmental file [number] on the basis that disclosure of the material would be contrary to the public interest because there is a recognised basis for claiming there is a ‘public interest’ against the disclosure for a number of folios in the file because it may prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance; it may disclose, or enable a person to ascertain the existence or identity of a confidential source of information; it may disclose lawful methods for preventing, detecting and investigating breachers or evasions of the law which would or be likely to prejudice the effectiveness of those methods; and finally because it was information provided ‘in confidence’, and the provider of the information has not consented to the disclosure of the information to the applicant. The applicant was invited to provide submissions on the validity of the certificate. No submissions as such were received concerning the certificate, which the Tribunal finds to be valid.
The applicant also invited the applicant under s.359A of the Act to comment on information contained in the folios purportedly covered by the s. 375A certificate. Given release of the material is prevented by s375A of the Act, the Tribunal nevertheless provided the applicant with the ‘gist’ of the information. The Tribunal noted the information was variously a dob in to state the applicant’s claimed date of birth was false; that the applicant had used multiple false names; that the applicant owned a [business] that avoids paying tax; that the applicant had threatened people; that the applicant may take his and the sponsor Ms [A’s] two children to Lebanon without their mother’s permission; that the applicant had previously been charged with various offences including goods in personal custody reasonably suspected of being stolen and low range PCA; that the applicant had links to criminal gangs; as well as various Police and Border Force correspondence.
The relevance and potential consequence of the Tribunal relying on this information was noted in the Tribunal’s correspondence.
On 21 January 2025 the applicant responded through his representative. No submissions were made as to the validity of the certificate. As to the substantive matters covered by the certificate, the applicant either denied the contentions or provided context and explanations for the individual matters. The Tribunal notes its review pertains to a Partner visa, and whilst some of the aforementioned matters may be relevant to any credibility assessment, most were not relevant to any assessment as to the existence of a Partner relationship between the applicant and the sponsor at the time of application and/or decision, or the PIC 4020(1) criteria the subject of this review. The Tribunal notes the applicant’s responses to the matters covered by the s375A certificate and has given them no adverse weight in its review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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. 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 circumstances 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?
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 Tribunal discussed in significant detail at its hearing the delegate’s finding that the applicant had given, or caused to be given, a bogus document, or information that is false or misleading in a material particular. A key issue in this review is the status of the relationship between the applicant and his sponsor, Ms [A], on 6 September 2018 when the Partner visa application was lodged, and the veracity of the information and evidence submitted to the delegate by the applicant in support of the contention.
The evidence pertaining to the relationship between the applicant and sponsor, and the circumstances concerning their history is complicated. The applicant stated at the Tribunal’s hearing that he and the sponsor had in fact been in a relationship together since 2006. He discussed a relationship that had been, he claimed, off and on for years. The applicant stated in response to the Tribunal’s questions that on 6 September 2018, the time of application, he had not been in a “full relationship” with the sponsor. The Tribunal noted to the applicant that there had been information before the delegate that suggested he had not been in an actual partner relationship with the sponsor since 2014/2015. The applicant stated again that the relationship had been “on and off” over the years. The Tribunal noted the paucity of corroborative evidence submitted by the applicant with his Partner visa application that spoke to his relationship with the sponsor at the time of application in September 2018. The applicant responded that his then lawyer had all the paperwork.
The Tribunal asked the applicant if the sponsor knew he was in fact lodging a Partner visa application, based upon being in a genuine and continuing spousal or de facto relationship with the sponsor, in September 2018. The applicant stated he had no idea. The Tribunal asked the applicant if he was in a relationship with the sponsor at the actual time of application. He responded he didn’t remember. The Tribunal noted, as stated in the delegate’s decision record he provided, that he had claimed to be in a de facto relationship with the sponsor since 1 June 2008 and he had in fact separated from the sponsor a few months before lodging the application. He stated he didn’t remember, and the issue was being managed by his lawyer at the time.
The applicant’s responses, and his broader evidence, cause the Tribunal significant doubt as to the veracity of the claim in the applicant’s application forms that the applicant and his sponsor were in a genuine de facto partner relationship at the time of application as was claimed in the application.
The sponsor’s own evidence confirms to the Tribunal its concerns.
At the Tribunal’s hearing of 17 December 2024, the sponsor, Ms [A], stated that her relationship with the applicant, which she stated had commenced in 2008, had ceased by 2016. Ms [A] clearly stated in her oral testimony that she did not sponsor the applicant’s Partner visa application dated 6 September 2018. This statement was subsequently put to the applicant under s359A. In the applicant’s written response of 21 January 2025, a written statement from the sponsor was provided that states (at 27) “I was not aware of the second application for spouse visa filed by [the applicant]”. The statement furthermore states “ [the applicant] and I separated due to multiple factors. However, we kept contact for a period of time for the children’s sake.” The statement goes on to note that on 17 December 2018 the Federal Circuit Court made Final Orders granting the sponsor full custody of the two children. She states (at 22) “[he] subsequently told me that his lawyer failed to…communicate his intention to reconcile with me”. She furthermore states that between 2018 and 2023 the applicant reached out to her through various parties and ultimately through lawyers.
The evidence before the Tribunal clearly indicates the relationship, that the Tribunal accepts existed some years earlier, had ceased by the time the Partner visa application was lodged on 6 September 2018.
The Tribunal has taken into account the applicant’s submissions, including his post-hearing submissions, that he believed the sponsor would support the September 2018 Partner visa application on the basis she had supported an earlier Partner visa application that he claims was not lodged by his former representative. The applicant claims in his submission of 21 January 2025 he believed the sponsor would do so “due to the fact that we continued to reconcile our indifferences (sic) at that stage for the sake of our children”.
The Tribunal thoroughly rejects the applicant’s claim he and the sponsor were attempting to reconcile their differences at the time of application. The Tribunal notes the Federal Circuit Court Order granting the sponsor custody of the children was made on 17 December 2018, just 3 months after the Partner visa application was lodged. The applicant has provided the Tribunal with the 17 December 2018 Court Order that found the sponsor would have sole parental responsibility, and the applicant was to spend no time with, and have no communication with their children.
The evidence therefore clearly suggests – as stated clearly by the sponsor in her own oral testimony – that the relationship had ceased at the time of application. Even if the parties were attempting to reconcile at that time (which the Tribunal does not accept), they were clearly, based on the applicant’s own evidence, not in a genuine and ongoing de facto relationship at the time of application.
The applicant nevertheless in his application form claimed to be in an ongoing de facto relationship with Ms [A]. The applicant answered YES to questions including “Is the relationship between the applicant and the sponsor genuine and continuing?” and “Does the applicant and the sponsor have a mutual commitment to a shared life as a married couple, or as de facto partners, to the exclusion of all others? The Tribunal finds these responses and this information, information on a material particular to the visa application, to be false and misleading.
There is evidence therefore before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a ‘bogus document’ as defined in s 5(1)(b) and/or ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5).
This matter is complicated by the fact that the Tribunal is in fact satisfied that the applicant and sponsor were previously in a genuine partner relationship with each other over a significant period of time. The Tribunal is satisfied the applicant and sponsor had two children together, who at the time of decision are [specified ages]. The children live with the sponsor Ms [A]. The applicant stated that he is not paying child support, and at the time of the Tribunal’s hearing there were no Court orders in place concerning custody. In the lead up to the hearing however it would appear that a relationship between the applicant and his children has now been formalised, and new Orders were made by consent confirming the applicant will now have some ongoing legal access to their children on weekends, and the sponsor will retain sole parental responsibility for the children but will consult the applicant on major long-term decisions. The Tribunal recognises the new Order but notes the issue before it nevertheless remains was a bogus document, or information that is false or misleading in a material particular was false or misleading provided as part of the applicant’s Partner visa application in September 2018.
The Tribunal has considered the applicant’s submission that he had essentially no intention to deceive the Department in his visa application, and his belief that the sponsor in September 2018 would support his Partner visa application, given she had done so in a previous application not lodged, and the fact “we continued to reconcile” their differences. The Tribunal as earlier stated rejects the assertion the parties were attempting to reconcile their differences in September 2018. The Tribunal is satisfied that in September 2018 there was no spousal or de facto relationship between the parties. As for any claim the application, and claims to be in a genuine de facto relationship, are an inadvertent error, the Tribunal notes that for the requirements in cl 4020(1) and (2) to be engaged, it is not necessary to show knowing complicity by the applicant in the fraud: Trivedi v MIBP (2014) 220 FCR 169 at [43]–[44]. The words ‘given or caused to be given’ do not import a mental element such that an applicant needs to know that the documents or information they are providing are defective in the relevant sense: Vyas v MIAC [2012] FMCA 92 at [68]. All that is necessary is that the information provided was purposefully false: Trivedi v MIBP (2014) 220 FCR 169. In this case, the applicant was responsible for the submission of his visa application. The information the applicant has given to the Department through his application forms claiming a genuine and ongoing de facto relationship to the exclusion of all others was purposefully false or misleading. The Tribunal would also note that an applicant is responsible for the submissions they submit. The Tribunal does not accept, on the evidence before it, that the applicant was unaware that he had submitted false or misleading information to the Department as part of his application in his claim to be in a genuine and continuing de facto relationship with the sponsor. The Tribunal is of the opinion, based on the evidence before it, that false or misleading information was submitted by the applicant to the delegate with ‘purposeful falsity’.

The Tribunal considers this evidence is relevant to its assessment whether there was an element of fraud or deception by the applicant which has attracted the operation of PIC4020(1): Trivedi v MIBP (2014) 220 FCR 169. The Tribunal considers the provision of false and misleading information to the Department in the application involved an element of fraud or deception on the part of the applicant.
In summary, the Tribunal has considered whether the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth:
·A ‘bogus document’, as defined in s 5(1), i.e., a document that the Tribunal reasonably suspects is a document that:
o   purports to have been, but was not, issued in respect of the person; or
o   is counterfeit or has been altered by a person who does not have authority to do so; or
o   was obtained because of a false or misleading statement, whether or not made knowingly; and/or
·Information that is false or misleading in a material particular, as defined in PIC 4020(5), i.e., information that is:
o   false or misleading at the time it is given; and
o   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;
o   in relation to the visa application or a visa held in the 12 months before the visa application was made.
There is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a ‘bogus document’ as defined in s 5(1)(b) and/or ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5). This evidence is as follows:
In regard to ‘information that is false or misleading in a material particular’, as defined in PIC 4020(5):
oIn the applicant’s “Application for migration to Australia by a partner”, the applicant declared his relationship with the sponsor was genuine and continuing.
oIn the applicant’s “Application for migration to Australia by a partner”, the applicant declared he and the sponsor have a mutual commitment to a shared life as a married couple, or as de facto partners to the exclusion of all others.
oIn the applicant’s “Application for migration to Australia by a partner”, the applicant declared he and the sponsor committed to a shared life to the exclusion of all others on 1 June 2008.
The Tribunal finds the applicant has falsely claimed in his Partner visa application form at the time of application, to be in a spousal or de facto relationship with the sponsor Ms [A] for migration purposes. The Tribunal considers the evidence suggests the applicant attempted to deliberately deceive the Department in relation to his relationship situation at the time of the application in September 2018.
The Tribunal finds the information contained in the applicant’s Partner visa application of September 2018, claiming to be in a genuine and continuing de facto relationship with the sponsor was both purposefully false or misleading at the time it was given, and is directly relevant to the criteria the Minister may consider when making a decision on what is a Partner visa application, a visa granted on the basis of the applicant being in a genuine and continuing spousal or de facto relationship with their sponsor at both the time of application, and the time of decision.
The Tribunal finds that this information meets the definition of ‘information that is false or misleading in a material particular’ defined in PIC 4020(5).
The Tribunal thus finds that the applicant supplied ‘information that is false or misleading in a material particular’ to the Department as defined in PIC4020(5). This information, the Tribunal considers, was false and misleading at the time it was given.
On the basis of the evidence and the Tribunal’s findings above, the Tribunal is satisfied that the applicant has purposely given information that was false or misleading at the time it was given, and which is relevant to the criteria the Minister may consider when making a decision on an application, namely cl 820.211(2). The false or misleading information provided by the applicant was false or misleading in a material particular because this information was central to the assessment of the applicant’s claim that at the time of application he was in a genuine and continuing de facto relationship with the sponsor.
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. 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.
The Tribunal invited the applicant at the hearing to submit any compelling circumstances that affected 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 justified the granting of the visa. The Tribunal noted the applicant failed to submit information to the delegate seeking a waiver of PIC 4020(1) on such a basis. The applicant submitted concerns about his son who had been diagnosed with autism, and his desire to show him support and care. The Tribunal has considered such issues rather as germane to a waiver on the basis of compassionate or compelling circumstances that affecting the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa and has assessed them under this particular head. No other compelling circumstances that affect the interests of Australia have been submitted. The Tribunal is subsequently satisfied on the evidence before it that there are no compelling reasons that affect the interests of Australia that justify exercising the waiver and granting the visa.
The Tribunal has considered whether 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 not satisfied that the requirements should be waived.
At the Tribunal’s hearing the applicant submitted the interests of his two Australian citizen children as reasons for the waiver. He stated his [age]-year-old son who has been diagnosed with autism was very attached to him. He stated furthermore that their mother Ms [A] suffered from [a medical condition], and she required help in caring for their children. He stated Ms [A] did not have a driver’s licence, and he was able to provide the extra domestic care the children need.
Post-hearing the applicant provided more fulsome reasons that he submitted were compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The Tribunal has taken each into account.
The interests of the applicant’s two Australian-born, Australian citizen children are submitted as compassionate or compelling circumstances that justify the granting of the visa. The applicant has raised Article 3 of the United Nations Convention of the Rights of the Child, submitting that the best interests of the child should be a primary consideration. The applicant also raised the requirements of the Family Law Act, and the disruption and hardship to the applicant’s children at a young age should the applicant be required to depart Australia. Both [Mr B] and [Mr C] were held as having their own unique needs where the applicant’s ongoing presence was held as vitally important to their respective well-being. It was submitted both will suffer significant ongoing hardship should the applicant’s visa be refused.
The medical conditions of [Mr B], the applicant’s youngest son who was diagnosed with Level 3 Autism spectrum disorder and has a severe language delay were submitted as justifying the waiver, along with the support provided by the applicant, and the affection [Mr B] has for the applicant.
In relation to [Mr C], it was submitted the applicant plays an active role in his life, with [Mr C] very attached to his father. Correspondence from [Mr C] as well as a statement from the child’s mother Ms [A] were submitted in support of the claim. The applicant also provided a letter and photograph from [Mr C] where he discussed the role the applicant plays in his life along with that of his younger brother [Mr B].
The applicant submits that he has been a “supportive and caring partner” and a “good father” with a strong bond with his two children. It was submitted, as a compelling or compassionate reason for the waiver, that the two children “need care, moral and financial support” from the applicant. The applicant’s good character has been attested to in recent supportive correspondence from Pastor [D], Senior Pastor at [a church] who wrote praising the applicant’s contribution to the community.
The Tribunal has considered whether the applicant’s relationship with his two Australian citizen sons, and the care and support he purportedly provides, represents a compelling or compassionate reason to exercise the waiver.
In relation to the applicant’s two sons, [Mr C] and [Mr B], the Tribunal accepts the applicant is their biological father. The Tribunal recognises that this fact in its own right generates certain rights for the applicant as their father under the Family Law Act 1975.
The applicant has provided evidence that speaks of the support he now provides his sons both individually and together as a family. This was supported by correspondence from one of his sons and supportive oral and written evidence from his sponsor Ms [A].
The Tribunal accepts the applicant is in contact with his sons and has a relationship of some sort with them today. The relationship includes attending [Mr B]’s Year 6 graduation, [Mr C]’s rugby league final and last Christmas. The Tribunal notes the very recent amendment by consent to the Court Orders concerning the applicant’s access to his sons.
The Tribunal finds the timing of the applicant’s reconnection with his children curious, given the Court Orders in place until the last few weeks deliberately precluded the applicant from communicating with his sons. In his oral testimony to the Tribunal the applicant stated he had not provided his sons with any financial support. The Tribunal accepts nevertheless that people and circumstances can change and is prepared to give the applicant the benefit of the doubt in relation to his claims concerning the support he provides and wishes to provide in the future for his sons.
The Tribunal subsequently accepts the applicant, as the father of two Australian citizen children, has an ongoing and positive relationship with his sons whilst they continue to reside with their mother, the sponsor. The Tribunal accepts both sons value the relationship they have with the applicant.
The Tribunal accepts that it is in the best interest of a minor child to have a meaningful relationship with both parents. The Tribunal also accepts that it is preferable that a child has the care and support of both parents. The Tribunal also takes into account the specific needs of each of his sons. Whilst the Tribunal harbours doubts as to the extent of support the applicant provides his sons, and continues to be perplexed by the timing of his desire to once again re-enter the lives of his sons (which would seem to correspond with this review), the Tribunal accepts that the relationship the applicant has with his two Australian citizen children today, and the support he may show them, can be classified as compassionate circumstances that affect the interests of an Australian citizen.
The needs of Ms [A], who has been diagnosed with [a medical condition], were also submitted as a compelling or compassionate reason for the waiver. It was submitted Ms [A] is in “dire need” of the applicant to remain in Australia so he can provide care for the children, especially [Mr B], when she is in poor health.
It was further submitted that Ms [A]’s desire for her two young sons to be raised in a “family environment”, with their father around to provide support for them and protect their interests justified the waiver.
The Tribunal does not accept Ms [A] is in “dire need” of the applicant to remain in Australia to support their children when she is in poor health, or for broader reasons. The Tribunal notes that Ms [A] has successfully raised their two children for many years without either the financial, emotional or practical support of the applicant. As an Australian citizen, Ms [A] is entitled to a range of Commonwealth Government support to assist her in supporting her children should she fall unwell. The Tribunal does not accept that Ms [A]’s health, and any support the applicant may provide, constitutes either a compelling or compassionate circumstance that justifies the granting of the visa.
The purported desire of the applicant to seek gainful employment to support his children was held as a compelling or a compassionate reason to waive the PIC 4020 criteria. The applicant states he is currently applying for a Bridging Visa E with work rights. The applicant states he worked as a [occupation] prior to coming to Australia. He claims he has no desire to be a financial burden on the Australian Government, and “instead will be the main provider for his two young children and ex-partner as well”.
The Tribunal does not accept this claim is a compelling or compassionate circumstance that justifies the grant of the visa. There is nothing in the applicant’s employment and personal history to satisfy the Tribunal he will obtain suitable employment that allows him to financially support his two sons and Ms [A] as the “main provider”. The Tribunal notes the 17 December 2018 Court Order stated the sponsor Ms [A] would have sole parental responsibility for their children, and the applicant was to spend no time with, and have no communication with the children. Whilst this Order has now been amended, and the applicant is seeking work rights on his Bridging visa, the Tribunal harbours doubts as to the extent of the financial support he would provide his Australian citizen sons. The applicant stated he has provided no financial support to his children in recent years. The Tribunal has no confidence in his claim he will be the main provider to Ms [A], his is of course now ex-partner. The Tribunal furthermore notes Ms [A] is in gainful employment and has access to the full suite of financial assistance available from the Commonwealth should she find her personal circumstances change due to her health or any other reason. The Tribunal does not accept that loss of the applicant’s potential salary in the workforce will bring financial hardship to Ms [A] and their two children that it would constitute as a compassionate or compelling reason that would justify the grant of the visa. The Tribunal notes furthermore that Ms [A] and his children as Australian citizens potentially have access to Human Services, Centrelink and other government services should they face genuine financial hardship.
Based on all the evidence before it, the Tribunal does not accept the applicant’s claim he will seek employment to support Ms [A] and his two sons is a compelling or compassionate circumstance that justifies the grant of the visa.
The applicant has also submitted the circumstances that led him to the lodgement of his Partner visa application. These included his utilisation of Mr [E] with an earlier Partner visa application, sponsored by Ms [A], that he claims cost him a significant amount of money but never lodged; his reliance on Mr [E] for (incorrect) advice when completing his forms; and his “innocent” belief that Ms [A] would support his second visa application.
The Tribunal notes Mr [E’s] delinquent history as a migration agent. The Tribunal has some sympathy for the applicant and Ms [A] as applicant’s sponsor as former clients of his services. The suggestion is that an earlier Partner visa application was prepared with Mr [E] when the applicant and sponsor were in fact in a genuine and continuing de facto relationship, but this application was never in fact lodged. The details of these applications are not with the Tribunal, but the Tribunal accepts the parties did at the very least provide documentation to Mr [E] to prepare such an application, and they were reliant on his services. The submissions to the Tribunal are that Mr [E] continued to mislead the parties as to the genuine status of the applicant’s application. The applicant’s argument can be characterised as “but for” Mr [E], the applicant and Ms [A]’s partner visa application would have been previously lodged and in all likelihood in the circumstances granted.
The Tribunal has taken into account the applicant’s claims. The Tribunal accepts the applicant and Ms [A] were previously in a genuine de facto partner relationship that led to them having two children together. The parties may have been in the relationship at the time the application should have been lodged by Mr [E] (purportedly in 2012) on the applicant’s behalf. That is a matter ultimately of conjecture. The Tribunal notes the Ms [A] is an Australian citizen, so has considered whether the sadly infamous Mr [E’s] ineptitude (or worse) in failing to lodge the Partner visa application is a compelling or compassionate circumstance that justifies the grant of the visa. The Tribunal does not consider it does. It remained the responsibility of the applicant (together with Ms [A] as sponsor at the time) to keep abreast of the planned application. It is not clear that they did so. The Tribunal furthermore notes the evidence today is that there is no genuine de facto partner relationship today between the applicant and Ms [A], and there has not been for many years. The Tribunal in such circumstances does not consider the applicant’s previous utilisation of the services of Mr [E] are a compelling or compassionate circumstance that justifies the grant of the visa.
The Tribunal has considered each of these submissions individually and collectively. The Tribunal finds that the relationship the applicant has with his two Australian citizen children today, and the support he may show them, can be classified as compassionate circumstances that affect the interests of an Australian citizen.
Given all the evidence before the Tribunal, it becomes necessary for the Tribunal to consider, having regard to those circumstances, whether the discretion should be exercised to waive PIC 4020(1). The Tribunal has taken into account the circumstances in which the clearly false and misleading information was provided by the applicant.

The applicant has submitted that he and the sponsor were in a genuine and continuing spousal relationship to the exclusion of all others at the time they attempted to lodge a Partner visa application some years prior to the application (most likely in 2012) this review pertains to. As the Tribunal has already stated, it accepts the applicant and sponsor were previously in a genuine de facto relationship which produced two Australian citizen, Australian born sons that are now [age] years of age and [age] years of age.
The Tribunal’s review however pertains to the application that was lodged by the applicant on 6 September 2018. By this time, based on all the evidence before it, it is abundantly clear to the Tribunal that the relationship had ceased some years previously. The Court Orders of 17 December 2018, just 3 months after this Partner application was lodged, clearly demonstrates the relationship was over. The applicant was prohibited from communicating with their children such was the state of the former relationship. The then sponsor Ms [A]’s own evidence to the Tribunal clearly demonstrates there was no relationship by September 2018.
Despite the end of the relationship, the applicant lodged a Partner visa application in September 2018 on the basis he and Ms [A] were in a genuine and continuing de facto relationship at that time. Ms [A], whom the Tribunal considered to be a genuine, articulate and impressive witness who has taken on a considerable role both working and raising the boys over many years,
This claim was clearly and demonstrably false and misleading. The Tribunal considers the submissions of the applicant that because Ms [A] had agreed to sponsor the earlier Partner visa application (when they were in a relationship), that she would still agree to do so in September 2018 as disingenuous and self-serving. The Tribunal flatly rejects the contentions and considers the more far more likely scenario is that the application was lodged (the Tribunal notes through his current representative Dr Abou-Hamad OAM) under the full knowledge the claims were false. The Tribunal notes of course that the applicant himself is responsible for his application and the documentation supplied, and false information provided, as part of that process.
The Tribunal is of the firm view that the integrity of Australia’s migration system is undermined and damaged generally by the provision of information in an application that is demonstrably false and misleading.
Having considered all the claims to justify the waiver, as previously discussed, the Tribunal considers that the relationship between the applicant and his two young sons today is, in its own right, a compassionate circumstance affecting Australian citizens.
The Tribunal has given this circumstance weight in its consideration but ultimately it does not consider any relationship between the applicant and his sons amounts to compelling or compassionate circumstances that justifies the granting of the visa. The Tribunal does not consider the PIC 4020(1) requirements should be waived based on these circumstances.
Quite simply, the Tribunal notes that this review pertains to the applicant’s application for a Partner visa. The evidence clearly demonstrates that the applicant did not meet the time of application criteria for the grant of the visa. There was no relationship between the applicant and sponsor on 6 September 2018. He is obviously not in a spousal or de facto relationship now, at the time of decision. Given the applicant never met the time of application criteria, that he provided false or misleading information in relation to his relationship with Ms [A], and he is not in a relationship with her today, the Tribunal is not satisfied that the compelling circumstance pertaining to his two sons justifies the granting of the applicant the visa.
The Tribunal acknowledges a refusal to exercise the waiver of PIC 4020 may cause the applicant and his sons a degree of emotional hardship, yet the Tribunal again would note that only recently were Court Orders amended that enabled him to lawfully be in communication with his sons. The Tribunal nevertheless considers any hardship can be mitigated. The applicant and his sons can remain in contact via telephone and an array of social media to provide each other with emotional support. The Tribunal notes furthermore that the applicant’s sons will remain with their Australian citizen mother who has clearly and demonstrably been the primary and indeed sole carer for their sons for many years. Having had regard to all the circumstances, the Tribunal does not consider that the hardship of the physical separation of the applicant and his two sons constitutes a compassionate or compelling circumstance that justifies the waiver of requirements of PIC 4020 in order to grant the visa.
Therefore, the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 820.226.
Having concluded that the applicant does not meet PIC 4020, the Tribunal finds no evidence that the applicant meets the criteria for any other subclass within the class of visa sought.
The Tribunal notes the applicant’s submissions concerning the circumstances concerning the planned lodgement of a Partner visa application, based on his relationship with Ms [A], in 2012 through the disgraced former representative Mr [E]. Whilst the Tribunal does not have the corroborative evidence supporting a Partner visa evidence from that time (a brief summary was provided nevertheless by the applicant’s representative), and nor is it its specific role in this review, the Tribunal considers the presence of the applicant and Ms [A]’s two children born in [specified years] suggests there was in all likelihood a genuine de facto relationship between the applicant and Ms [A] at that time. The Minister has powers under the Act to replace a decision of the Tribunal on an applicant’s case with a decision that is more favourable to that person if the Minister thinks it is in the public interest to do so. The Minister has provided guidance on the types of unique and exceptional circumstances that could be brought to the Minister’s attention. The Tribunal explained the process of requesting Ministerial intervention at its hearing.
Having regard to the applicant’s circumstances and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal has not referred the matter to the Department to be brought to the Minister’s attention. The Tribunal nevertheless notes the applicant retains the ability to do so on the basis of what he may consider to be unique or exceptional circumstances.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Date(s) of hearing:  17 December 2024
Representative for the Applicant:           Dr Bahia Abou-Hamad (MARN: 9904783)
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 ART during the review of a reviewable migration 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.
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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.
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