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information – genuine and continuing relationship – sponsor’s information that relationship ceased and sponsorship withdrawn – applicant’s claim in permanent stage statement that relationship continuing – divorce shows separation date before permanent stage processing – later claim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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2119281 (Migration)

Details

AGLC: 2119281 (Migration) [2024] ARTA 627
Case: [2024] ARTA 627
Decision Date: 14 November 2024

CaseChat Overview and Summary

In the matter of 2119281 (Migration), the primary applicant, an individual seeking a Partner (Residence) (Class BS) visa, Subclass 801, was subject to scrutiny by the Administrative Appeals Tribunal (AAT). The primary applicant's relationship with their sponsor had allegedly ceased, leading to the sponsor withdrawing their support. The applicant, however, claimed the relationship was continuing and genuine. The Tribunal was tasked with determining whether the primary applicant met the Public Interest Criterion 4020 (PIC 4020), which mandates the absence of any false or misleading information in visa applications. The evidence presented included documents indicating the separation date, which predated the permanent stage of visa processing, and a later claim of a short reconciliation followed by a second separation.

The legal issues central to this case involved the interpretation and application of PIC 4020. Specifically, the Tribunal had to decide whether the primary applicant had provided false or misleading information regarding their relationship status, and if the identity requirements under PIC 4020(2A) and (2B) were met. The Tribunal also considered whether there were compelling or compassionate reasons to waive the requirements of PIC 4020(1) and (2). The primary applicant's claim of a family unit, including a business employing Australian citizens and allegations of family violence, were examined in the context of the statutory criteria.

Upon reviewing the evidence, the Tribunal concluded that the primary applicant did not meet the requirements of PIC 4020. The Tribunal found that the information provided by the primary applicant was misleading, as the separation date occurred before the permanent stage processing of the visa application. Additionally, the Tribunal was not persuaded by the later claim of a brief reconciliation and subsequent separation. The Tribunal determined that there were no compelling or compassionate reasons to waive the requirements of PIC 4020, and thus, the application for the visa was denied.

The AAT affirmed the decision not to grant the applicants Partner (Residence) (Class BS) visas, concluding that the primary applicant did not satisfy the necessary criteria. The Tribunal's decision was based on the primary applicant's failure to meet the requirements of PIC 4020, particularly concerning the provision of false or misleading information about the relationship status.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

The Tribunal is not satisfied the secondary visa applicant meets the requirements of cl.801.321DECISION The Tribunal affirms the decisions not to grant the applicants Partner (Residence) (Class BS) visas.Date(s) of hearing: 13 November 2024Representative for the Applicant: Mr Lei Wang (MARN: 1789497)

Ratio Decidendi

Legal Principle Established

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