2119281 (Migration) - [2024] ARTA 627

2119281 (MIGRATION) [2024] ARTA 627 (14 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  2119281

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 14 November 2024
Decision:The Tribunal affirms the decisions not to grant the applicants Partner (Residence) (Class BS) visas.

Statement made on 14 November 2024 at 3:42pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – false and misleading information – genuine and continuing relationship – sponsor’s information that relationship ceased and sponsorship withdrawn – applicant’s claim in permanent stage statement that relationship continuing – divorce shows separation date before permanent stage processing – later claim of short reconciliation and second separation – relationship now ceased – discretion to waive requirements – visa applicant’s business employing Australian citizens – small number of part-time employees – claim of family violence – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.09A(3), 1.15A(3), Schedule 2, cls 801.221(6), 801.226, 801.321, Schedule 2, criterion 4020(1), (5)
CASES
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
Wu v MICMSMA [2021] FCCA 1091

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 for Home Affairs on 8 December 2021 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 8 March 2017. The delegate refused to grant the visa on the basis that the primary visa applicant did not satisfy the requirements of cl.801.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the primary visa applicant met the requirements of Public Interest Criterion 4020.
The applicants appeared before the Tribunal on 13 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the 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 primary visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.801.226 for the grant of the visa.
Broadly speaking PIC 4020 requires that:
-there is no evidence that the applicant has given, or cause to be given, to the Minister, an officer, the Tribunal, 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 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 three 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 grant of the visa: PIC 4020(4). However this waiver does not apply to the identity requirements in PIC 4020(2A) or (2B).
Has the applicant given, or caused to be given, a bogus document, or information that is false and 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. 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 the information that is false and 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.
In this decision record, a reference to ‘the applicant’ is to be taken to a reference to the primary visa applicant or first named applicant.
The applicant lodged her partner visa application - information for permanent stage processing online on 18 March 2020. The applicant recorded the following details as the current circumstances of her relationship with the sponsor in that application lodged 18 March 2020: “I am working a part-time job and taking an English course study. My husband is working a full-time job. He is taking care of the home loan. I am taking care of everyday home expenses. We have a joint bank account. We both use it and pay some of the expenses. My husband is a very good cooker. He would not let me cook if he is home. I do most cleanings and washings. He also [does] house maintenance and mowing. We do not have a lot of friends but a few good friends. We sometimes gather together for parties or visit each other[s] family. We go to church most Sundays together. We have committed [to] each other for a life partner. He is a good person and cares about me and my son[.] We emotionally support each other. Our relationship is very steady. We love each other. We both are willing to keep it as long as we should live.”
The applicant provided the Tribunal with a copy of the Department’s decision record dated 8 December 2021, which recorded that the Department had received information on 25 February 2020 that the applicant and the sponsor had separated in September 2019. The Department’s decision record refers to a divorce order relating to the marriage between the applicant and the sponsor, made in the Federal Circuit Court of Australia recording the marriage was terminated, effective from [December] 2020. The Department’s decision record also recorded the responses provided by the applicant to the Department in which she claimed the information provided in the permanent stage processing partner visa application lodged online on 18 March 2020 were correct, and her relationship with the sponsor continued until October 2020.
In the hearing the Tribunal read out the relationship details recorded in paragraph 12 above, that the applicant had recorded in the permanent stage processing partner visa application lodged online on 18 March 2020, and identified this information as the information the Department had concluded was false and misleading. The Tribunal discussed that this information provided by the applicant was that her relationship with the sponsor was continuing and genuine on 18 March 2020
The Tribunal discussed with the applicant, the divorce granted on the basis of irretrievable breakdown of the relationship in November 2020, effective [in] December 2020. The Tribunal discussed with the applicant that if the applicant and the sponsor claimed their relationship had irretrievably broken down, the Federal Circuit Court must have been advised and satisfied that the applicant and the sponsor had been separated for 12 months.
The Tribunal discussed with the applicant that she had not provided any documentary evidence that the relationship with the sponsor had continued past September 2019. The Tribunal then clarified that the applicant had provided joint bank statements dated July to December 2019. The applicant had provided the Department with screenshots of text messages, claiming these occurred in 2020. The messages were not dated, and were therefore not documentary evidence of the relationship in 2020. The Tribunal discussed with the applicant that there was no documentary evidence of her relationship with the sponsor in 2020, and no documentary evidence of her relationship with the sponsor at the time that she provided the information in the permanent stage processing partner visa application online in 18 March 2020.
The applicant initially stated in her oral evidence in the hearing that the information provided in the permanent stage processing partner visa application lodged online on 18 March 2020 was correct information and was true information.
The applicant subsequently stated that she had separated from the sponsor in September 2019. She stated that they had reconciled in January 2020, but the relationship had broken down again a little over a month later on 2 March 2020. The applicant stated they did not reside together after 2 March 2020. The applicant stated the information provided in the permanent stage processing partner visa application lodged online on 18 March 2020 was provided by the sponsor. The applicant stated the sponsor advised her that he would help her get the partner visa. The applicant stated the sponsor said he would assist her to obtain the partner visa even though their relationship had ceased. The applicant stated that she was not in a relationship with the sponsor when the information was lodged in the permanent stage processing partner visa application lodged online on 18 March 2020.
In answer to a question from the Tribunal, the applicant stated that she did not know whether correct or incorrect information was provided on 18 March 2020. The applicant stated the information lodged online was provided by the sponsor.
The Tribunal put information to the applicant pursuant to s.359A of the Migration Act, in the hearing, that where the delegate records in the Department’s decision record that the Department had been advised on 25 February 2020 that the applicant and sponsor had separated since September 2019, that information had been provided to the Department in writing by the sponsor. The Tribunal advised the applicant that the sponsor had advised the Department that he wished to withdraw his sponsorship of both applicants, and was applying for a divorce in relation to his marriage to the applicant, and had received legal advice that the divorce would not be granted until 12 months after the relationship had ceased. The Tribunal advised that the information recorded by the Department provided by the sponsor indicates that the applicant’s evidence that the information she provided about the relationship on 18 March 2020 was not correct information, and that the applicant was not living with the sponsor and was not in a genuine relationship with the sponsor from September 2019. Further the Tribunal discussed with the applicant that the information provided by the sponsor to the Department indicates that the evidence she was providing in the hearing that the sponsor had lodged the permanent stage processing applications online may not be true. The Tribunal discussed with the applicant that it understood that the breakdown of relationships can be complicated, and difficult, and there can be attempts at reconciliation, but if the relationship had ceased, that information cannot be consistent with providing information that the relationship was genuine and continuing. The Tribunal discussed that the information provided by the sponsor to the Department that he wished withdraw his sponsorship and that the relationship had ceased five months previously, indicated that the information provided online in the permanent stage processing of the partner visa application was provided by the applicant and was not provided by the sponsor. The Tribunal also discussed that this indicated that the applicant had the requisite element of fraud, or deception in providing the incorrect information because she was aware the relationship was not continuing, and she and the sponsor were not in a committed relationship as described in the permanent stage processing application. The Tribunal discussed that if the applicant had provided false and misleading information, the applicant would not meet the requirements of PIC 4020(1), and if those requirements were not waived this would be a reason for affirming the decision under review.
The applicant stated she understood the particulars of the information, its relevance to the review and the consequences if the Tribunal relied upon that information. The hearing was adjourned for a short time to allow the applicant the opportunity to consult with her representative.
After the short adjournment the applicant stated that the sponsor was the type of person who changes a lot. The applicant stated the sponsor had told her that he had advised the Department the relationship is broken down, but that he had not cancelled the sponsorship.
The Tribunal discussed with the applicant why she had not stated this in any of the statutory declarations or responses she had provided to the Department. The applicant stated that she did not understand this. The Tribunal discussed that the applicant had provided information to the Department after the permanent stage processing partner visa application lodged online on 18 March 2020, claiming the relationship with the sponsor continued until October 2020. The applicant had not advised the Department that the relationship had ceased and the sponsor had provided the information in the permanent stage processing partner visa application lodged online on 18 March 2020. The Tribunal discussed the inconsistencies in the information provided by the applicant, and it was difficult to find her evidence was reliable.
The Tribunal has considered the information provided by the applicant in the hearing. The Tribunal has also considered the written information provided by the applicant to the Department. The Tribunal accepts the oral evidence of the applicant in the hearing that she and the sponsor separated in September 2019. The Tribunal has assessed that this evidence is consistent with the information provided by the sponsor to the Department. The Tribunal has assessed that this evidence is consistent with the documentary evidence of the relationship provided by the applicant to the Department. (The Tribunal notes the joint bank account statement in both parties’ names dated July 2019 to December 2019, but finds this can be consistent with the relationship ceasing prior to the last date on the bank statement). The Tribunal has assessed that the evidence that the relationship ceased in September 2019 is consistent with the divorce order, in which the applicant and the sponsor claimed their relationship had irretrievably broken down, and the Federal Circuit Court accepted the relationship had been irretrievably broken down for 12 months in November 2020, with the divorce order to be effective [in] December 2020.
The Tribunal has considered the applicant claimed in a statutory declaration dated 2 June 2021, that the relationship with the sponsor was genuine and ongoing until October 2020. The Tribunal has considered the applicant told her counsellor (whom she saw on 30 April 2024 and 28 May 2024, followed by telehealth appointments on five occasions in 2024) that the relationship with the sponsor ceased on 25 November 2020 when she left the sponsor. The Tribunal has considered that the applicant initially stated to the Tribunal in the hearing that the information provided in the permanent partner processing application lodged online on 18 March 2020 was correct. The Tribunal finds that the applicant provides unreliable and inconsistent evidence about her relationship with the sponsor.
The Tribunal is satisfied that the relationship between the applicant and the sponsor ceased in September 2019.
The Tribunal is satisfied that the information provided to the Department in the permanent partner processing application lodged online on 18 March 2020 is false and misleading.
The Tribunal accepts the evidence of the applicant that she was aware that any information provided in the permanent stage processing application, that the partner relationship between herself and sponsor was continuing on 18 March 2020, was false and misleading information. The Tribunal is satisfied that there is an element of fraud and deception in the information provided in the permanent stage processing application lodged online on 18 March 2020, irrespective of whether the information was recorded by the applicant or the sponsor.
The Tribunal does not accept that the applicant and sponsor resumed the relationship between January 2020 and 2 March 2020. The Tribunal is satisfied that at the time the sponsor wrote to the Department on 25 February 2020 to advise that the relationship between him and the applicant had ceased in September 2019, and that he wished to withdraw his sponsorship of both applicants, that the relationship between the applicant and the sponsor had ceased and that the parties had not reconciled. On assessment of all the evidence before it the Tribunal is not satisfied that it was the sponsor who provided the information to the Department in the permanent stage processing application lodged online on 18 March 2020.
It is relevant that the applicant gave evidence, and the Tribunal accepts this evidence, that the relationship between the applicant and the sponsor was not continuing and did not exist on 18 March 2020 when the permanent stage processing application was lodged. The Tribunal has considered all the evidence before it and is satisfied that the information provided in the permanent stage processing application lodged online on 18 March 2020 was provided by the applicant.
The Tribunal is satisfied that the information provided in the permanent stage processing application about the current circumstances of the relationship on 18 March 2020 was false and misleading at the time it was given, and was false or misleading in a material particular as defined in PIC 4020(5). The Tribunal is satisfied that the information provided about the current circumstances of the relationship in the permanent stage processing partner visa application lodged online on 18 March 2020 was relevant to the criteria the Minister may consider when making a decision on the application for the permanent Subclass 801 partner visa. The Tribunal is satisfied that the false or misleading information was in relation to the visa application.
For all the above reasons the Tribunal is satisfied that the applicant does not meet the requirements of PIC 4020(1).
Should the requirements of PIC 4020(1) 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 applicant did not contend that there were compelling circumstances that affect the interests of Australia that justify the grant of the visa. The Tribunal has considered the applicant is currently operating a business and paying tax, but is not satisfied that the potential loss of the applicant’s tax payments or contribution to the economy amounts to compelling circumstances that affect the interests of Australia that justifies the grant of the visa The Tribunal has considered the information provided by the applicant, and finds that there are no compelling circumstances that affect the interests of Australia that justify the grant of the visa.
The applicant submitted that there are compassionate or compelling circumstances that affect the interests of Australian citizens that justify the grant of the visa. The applicant stated that she runs a [business], pays tax and employs Australian citizens on a part-time or casual basis. The applicant did not provide any documentary evidence, but the Tribunal accepts that the applicants operate a [business] in rented premises in regional Victoria, and has operated this business for more than two years and the contract for the business is for a period of 12 years. The Tribunal accepts that the applicants work in the business on a full-time basis. The Tribunal accepts that the applicants employ the previous owner’s mother who works half a day each week. The Tribunal accepts that the applicants employ three or four secondary school students who work three hours a day two or three times a week.
The Tribunal does not accept that the loss of the previous owner’s mother’s employment of half a day per week, or the loss of the secondary school students’ employment of between six and nine hours per week on a casual or part-time basis, amounts to compassionate or compelling circumstances that affect the interests of an Australian citizen or citizens, that justify the grant of the visa. The Tribunal has taken into account that the Australian citizens are in temporary employment by the applicants for relatively short periods of time per week, and for this reason does not find the potential loss of that employment to amount to compassionate or compelling circumstances that justify the grant of the visa.
The Tribunal has also considered that the applicant has claimed she experienced family violence during her relationship with the sponsor. The applicant provided a letter from a pastor, who stated he was the pastor for the first named applicant for four years when he worked in the Chinese Ministry of the [named] Church from 1996 to 1999 in Victoria, and is now located and works in Western Australia. The pastor records attending the wedding feast, blessing the married couple and being advised of difficulties in the relationship. In the statutory declaration of the applicant dated 30 April 2023, the applicant records that she and the sponsor were married on 26 November 2016, and experiencing difficulties in the relationship between January 2017 and September 2019. As the pastor has recorded being the pastor for the applicant for four years from 1996 to 1999, and these years do not coincide with the applicant’s relationship with the sponsor, the Tribunal gives this report no weight.
The applicant provided the Tribunal with a report from her counsellor dated 4 November 2024. This report was provided to the Tribunal at the hearing. The Tribunal notes that the applicant reported to the counsellor that she left the sponsor, and the relationship ceased on 25 November 2020. This is not consistent with the evidence given by the applicant to the Tribunal in the hearing, and the Tribunal is satisfied, for the reasons outlined above, that the relationship between the applicant and the sponsor ceased in September 2019. The Tribunal assesses the report of the counsellor that the information about the relationship between the applicant and the sponsor is based on the self reporting of the applicant, and may not always be reliable. The Tribunal is satisfied that the report of the counsellor assesses that the applicant exhibited signs of mixed anxiety and depression.
The Tribunal has considered whether the principles of the judgement in Wu v MICMSMA [2021] FCCA 1091 apply. The judgement looked at the requirements of assessing the circumstances of a relationship as required by reg 1.15A(3) or reg. 1.09A(3) to assess the genuineness of a relationship. This is relevant when the genuineness of the relationship between an applicant and sponsor was claimed as a compassionate or compelling circumstances affecting the interests of the sponsor as the spouse/partner who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen to justify the grant of the visa. The Tribunal has considered whether the claim the applicant experienced relevant family violence and claims to meet the requirements of cl.801.221(6) could require the same level of assessment from the decision-maker. However in the circumstances where the relationship has ceased, the grant of the visa does not affect the interest of the ex-partner, who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen, and therefore the considerations in PIC 4020(4)(b) do not apply to waive the requirements of PIC 4020(1). Therefore the Tribunal is satisfied it is not required to assess whether the applicant has met the evidentiary requirements for a claim of family violence for the purposes of satisfying cl.801.221(6), in order to assess whether there are compassionate or compelling circumstances that affect the interest of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen to justify the grant of the visa and waive the requirements of PIC 4020(1).
The applicant’s representative submitted that the applicant was not aware that she could meet the requirements of the visa, although the relationship had ceased in circumstances where she had experience relevant family violence. The applicant’s representative submitted that she had provided the false and misleading information because she was not aware of other alternatives. In the circumstances of this review, the applicant has provided information claiming that she was in a genuine and continuing relationship which was false and misleading because it was provided at a time that the relationship had ceased. The Tribunal is satisfied that the requirements of PIC 4020(1) apply. The Tribunal is not satisfied that these requirements should be waived because the applicant claims if she had provided other information she may have met relevant criteria.
The Tribunal finds that the claim the applicant experienced family violence does not establish that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
For all the above reasons, the Tribunal is satisfied that there are not compelling circumstances that affect the interests of Australia, and there are not 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 grant of 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.801.226.
Secondary visa applicant
Clause 801.321 is time of decision criteria. Cl.801.321(a) requires that the secondary visa applicant had been granted a subclass 445 or a subclass 820 visa on the basis of being the dependent child or the member of the family unit of another person; and cl.801.321(b) requires that the other person has been granted a subclass 801 visa. The secondary visa applicant was granted a subclass 820 visa on the basis of being the member of the family unit of the primary visa applicant. The primary visa applicant does not meet the criteria for the subclass 801 visa, and therefore has not been granted a subclass 801 visa. As the Tribunal finds the primary visa applicant does not meet the requirements of cl.801 226, the secondary visa applicant does not meet the time of decision requirements in cl.801.321(b).
The Tribunal is not satisfied the secondary visa applicant meets the requirements of cl.801.321
DECISION
The Tribunal affirms the decisions not to grant the applicants Partner (Residence) (Class BS) visas.
Date(s) of hearing: 13 November 2024
Representative for the Applicant: Mr Lei Wang (MARN: 1789497)