2218422 (Migration)

[2023] AATA 4162

2218422 (Migration) [2023] AATA 4162 (15 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Gaganjot Singh Bhatia

CASE NUMBER:  2218422

MEMBER:Mila Foster

DATE:15 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 15 November 2023 at 9:09am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – false or misleading information provided in connection with application – relationship history statement and supporting letter claimed genuine and continuing relationship – adverse information – allegation of contrived relationship denied but admission that relationship had ceased – family violence and apprehended violence order – workplace accident and depression – no medical evidence provided – no compassionate or compelling circumstances to waive criterion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 820.226, Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 November 2022 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant[1] applied for the visa on 19 August 2016 on the basis that she was the spouse of [the sponsoring partner].

   [1] Also known as [Alias 1] and [Alias 2].

3. The delegate refused to grant the visa on the basis that the applicant did not meet Public Interest Criterion 4020 (PIC 4020) as required by cl 820.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the grant of the visa. Specifically, the delegate found that the applicant did not meet the requirement in PIC 4020(1) because she had provided false or misleading information in connection with her visa application.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the applicant meets the requirement in PIC 4020(1) and, if not, whether the requirement should be waived.

7. Broadly speaking, PIC 4020(1) 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. The requirement in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4).

8. The evidence before the Tribunal includes Department of Home Affairs’ files relating to the visa application,[2] a written submission and evidence presented to the Tribunal on 31 August 2023, and oral evidence the applicant gave when she appeared before the Tribunal on 10 November 2023.[3]

   [2] File numbers [Reference 1] and [Reference 2]. The files contained a certificate and notification issued on 3 November 2022 under s 376 of the Act. The applicant was invited to comment on its validity at the hearing, she had no comment. The Tribunal considers it a valid certificate and notification, and notes that the information to which it pertains was put to the applicant by the Department and is not relevant to the issue in the review.

   [3] On 8 and 9 November 2023 the representative requested that the hearing be postponed because his OMARA registration had been cancelled, he was awaiting the outcome of his application to the NSW Law Society for a practicing certificate, the applicant was uncomfortable about attending the hearing without him, and it would be in the applicant’s best interests to have him attend the hearing. The requests were refused because the issue on review was not new, the applicant had been represented by the same representative when the issue was considered by the Department, the representative had made a written submission on the issue prior to the hearing, the applicant does not have a right to representation at the hearing, the applicant has appeared before the Tribunal before (differently constituted - case number 1834032) and hence would be familiar with the conduct of hearing, and the representative could attend the hearing as a support person (which he did).

   Background

9. The applicant claims that she is a Fijian citizen. It is claimed that the sponsoring partner is an Australian citizen and resident. The applicant entered Australia on a visitor visa in 2014. She claims she met the sponsoring partner in Australia on 11 November 2015, they began living together on 5 December 2015 and married [in] February 2016. The applicant claims she was subjected to family violence by the sponsoring partner during their relationship and that the relationship has ended. At the hearing she said she did not know whether she and the sponsoring partner were divorced.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

10. 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.

11. 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.

12. 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.

13. The Tribunal has concluded that there is evidence that the applicant provided to the Department false and misleading information about the nature of her relationship with the sponsoring partner in connection with her visa application.

14. On 14 April 2022 the Department requested more information from the applicant including ‘relationship history statements’ and evidence of her relationship with her spouse. In response, on 11 May 2022 the applicant provided documents which included a letter from her dated 9 May 2022 with the subject heading ‘History Of Our Relationship’ and an undated letter from [Mr A]. In her letter of 9 May 2022, the applicant stated that since she and the sponsoring partner had been in a relationship they had been very committed and loyal to each, she indicated that they were living at [Address 1], and she said her husband was supporting her because she was not working as a result of a workplace accident. [Mr A] stated in his letter that the applicant was his friend’s daughter-in-law, that he often visited the applicant and the sponsoring partner at their place in [Suburb 1], he believed their relationship was honest and genuine, and they were living happily as a normal married couple.

15. On 22 July 2022 the Department invited the applicant to respond to adverse information which included allegations received by the Department that her relationship with the sponsoring partner had been contrived for the purposes of gaining permanent residence, they had separated about 4 years before, she had listed her status on her [social media] page as ‘single’, there were no photographs of the applicant on the sponsoring partner’s [social media] page, and photographs and posts on the sponsoring partner’s [social media] page indicated he had entered into a ‘traditional marriage or union’ with another woman. In response the applicant submitted a letter dated 17 August 2022 in which she denied the allegations of a contrived marriage. She stated that after she returned home from hospital following a workplace accident the sponsoring partner put her stuff out, asked her to leave and began cheating on her by having extra marital affairs. She stated that she and the sponsoring partner were still legally married but acknowledged she was not living with him and that he was in a relationship with someone else.

16. On 30 August 2022 the Department requested further information from the applicant about her relationship with the sponsoring partner as a result of the information she had provided in her letter of 17 August 2022, specifically a timeline of her relationship and evidence of the relationship from when it commenced to date or when the relationship had ended. The applicant’s response included a letter dated 28 September 2022 in which she stated that after she returned home from hospital following her workplace accident in 2018 the sponsoring partner had put her stuff out and asked her to leave, and he began having extra marital affairs. She said she had tried her best to mend her relationship but ultimately the relationship ended due to the sponsoring partner’s apathy and abuse.

17. On 20 October 2022 the Department sent the applicant an invitation to comment on adverse information indicating she had provided false or misleading information in her letter of 11 May 2022 and [Mr A]’s letter and hence did not satisfy PIC 4020(1). The adverse information was said to be the information the applicant had provided in her letters of 17 August 2022 and 28 September 2022 which indicated that her relationship with the sponsoring partner had ceased after her workplace accident in 2018. The applicant responded in a letter dated 16 November 2022 that she had endured a very abusive relationship with a partner who was violent, inconsiderate and unfaithful. She stated that the abuse and domestic violence began in 2017 and she was granted a AVO as a result.[4] She referred to pain, agony and trauma she was going through, being alone and not being able to cope with so much. She stated that after receiving the invitation of 14 April 2022 she provided all the documents she had about her relationship with the sponsoring partner at the time and ‘had seen a glimmer of hope after so long that I wrote my statement of relationship which was not representing the true facts’. She referred to subsequently realising her ‘mistake’ and providing the correct information in response to the invitation of 30 August 2022. She said she had no intention of providing false or misleading information and had not done so in the past.

    [4] The Tribunal has before it a copy of a Final Apprehended Domestic Violence Order issued [in] September 2017 against the sponsoring partner for the protection of the applicant.

18. In a written submission dated 30 August 2023, the applicant’s representative stated that he did not believe there was any ‘purposeful falsity’ on the applicant’s part because there was no element of fraud or deception as evidenced by the ‘pain, agony and trauma’ she had gone through and which was indicative of duress.

19. At the hearing the applicant confirmed as indicated in her letters of 17 August 2022 and 28 September 2022 that her relationship with the sponsoring partner had ended at the end of 2018 and that they had not lived together since then. She stated she moved to [Address 1] after the relationship ended and the sponsoring partner had never lived with her at that address. The Tribunal noted to the applicant that she did not mention in her letter of 9 May 2022 that her relationship with the sponsoring partner had ended or that they were not living together rather that the letter appeared to give the impression that she was still in a relationship with the sponsoring partner and that they were living together at the [Suburb 1] address. The Tribunal put to the applicant that the information in the letter of 9 May 2022 thus appeared misleading and that the information in the letter that the sponsoring partner was supporting her appeared false. The Tribunal also put to the applicant that the statements in [Mr A]’s letter that he visited the applicant and the sponsoring partner often at their place in [Suburb 1] and that they were living happily as normal married couple also appeared false or misleading. The applicant agreed that the information was misleading but, she said, she was going through a lot of stress and trauma at the time as a result of her accident and the breakdown of her marriage. She said she subsequently submitted the correct paperwork. The Tribunal questioned how the information she provided in her letter of 9 May 2022 and the submission of [Mr A]’s letter could have been the result of a mistake when it seemed she would have been aware when the letters were presented to the Department on 11 May 2022 that her relationship with the sponsoring partner had ended in 2018, they had not lived together since 2018, and the sponsoring partner was not supporting her. The applicant replied that she could not think straight because she was depressed for nearly 3 years after the accident. The Tribunal noted that she had stated in a letter dated 16 November 2022 that the relationship statement she had made in her letter of 9 May 2022 ‘did not represent the true facts’. The Tribunal put to the applicant that this seemed to indicate that she was aware when she submitted her letter of 9 May 2022 and [Mr A]’s letter that they contained false or misleading information and hence there was no mistake. The applicant had no response.

20. The applicant claims she was depressed for nearly 3 years after her workplace accident, that she affected by the accident, the end of her marriage and the family violence she experienced during her relationship. These occurred 3.5 year or more years before she wrote her letter of 9 May 2022 and submitted [Mr A]’s letter. While the Tribunal accepts that an accident, the end of a relationship and family violence can have long term effects there is no medical evidence to support the claim that the applicant was depressed, or that she was mentally or physically affected by pain, trauma or stress when she wrote the letter of 9 May 2022 and submitted [Mr A]’s letter. She claims she corrected the incorrect information later. However, her letter of 16 November 2022 indicates that she was aware when she wrote her letter of 9 May 2022 did not contain correct information about her relationship with the sponsoring partner. Further, the nature of the incorrect information in the two letters is such that the Tribunal does not consider it plausible and hence does not accept they were provided by mistake. The Tribunal does not accept that the applicant could have been mistaken in May 2022 as to whether she was in a relationship with the sponsoring partner, was living within him or he was supporting her when it had been 3.5 years since their relationship had ended, they had ceased living together and the sponsoring partner had supported her. That the applicant only provided the correct information months later and only after the Department questioned the accuracy of the information she had provided about her relationship also does not suggest the incorrect information she provided in May 2022 was a mistake.

21. The Tribunal thus finds that the applicant’s letter of 9 May 2022 and [Mr A]’s letter contain false and misleading information that the applicant and the sponsoring partner were still in a relationship, they were still living together, and the sponsoring partner was supporting the applicant at that time when none of those were true. The Tribunal finds that the applicant was aware that this information was untrue when she provided the documents to the Department on 11 May 2022 in connection with her visa application and hence there was purposeful falsity on the part of the applicant in providing them to the Department in support of her visa application.

22. The primary criteria for the grant of the visa include cl 820.211 and cl 820.221 which require that at the time of application the applicant is and at the time of decision continues to be the spouse or de facto partner of the sponsoring partner unless the relationship has ceased and certain circumstances exist. Thus, the false and misleading information in the applicant’s letter of 9 May 2022 and [Mr A]’s letter is relevant to the criteria to be considered by the Minister when making a decision on the visa application.

23. For the above reasons the Tribunal finds that there is thus evidence before it 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 information that is false or misleading in a material particular in relation to the visa application. The applicant therefore does not meet PIC 4020(1).

    Should the requirement in PIC 4020(1) be waived?

24. The requirement in PIC 4020(1) 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.

25. 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.

26. No compelling or compassionate reasons were presented to the Department or in the written submission presented on review. Asked at the hearing whether there were compelling circumstances that affect the interests of Australia that justify the granting of the visa, the applicant stated that she had not broken any rules in Australia. It is the Tribunal’s view that abiding by Australia’s rules and laws is to be expected of citizens as well as those who visit and/or reside here and do not amount to compelling circumstances that affect the interests of Australia. Asked whether there were any 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, the applicant said there were not. The Tribunal thus finds that there are no compelling or compassionate circumstances of the kind referred in PIC 4020(4) that justify the granting of the visa. The Tribunal is therefore not satisfied that the requirements of PIC 4020(1) should be waived.

    Conclusion

1. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 820.226.

2. Further, on the evidence before the Tribunal the applicant does not meet the criteria for any other subclass within the class of visa she has applied for.

   DECISION

3. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Mila Foster
   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.

   …