2311969 (Migration) - [2025] ARTA 1666

2311969 (MIGRATION) [2025] ARTA 1666 (17 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal:Senior Member A Murphy
Place:Melbourne
Date:  17 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·Public Interest Criterion 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations

Statement made on 17 July 2025 at 9:50am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – identity – name, date of birth, ethnicity and citizenship – second name on falsified UNHCR identity card issued in third country declared on arrival and never asserted – different spellings of names and places and other discrepancies – illiteracy and difficulties of interpreting and recording complex information – supporting statements from family and community organisation – country information and department’s policy guidelines – biometrics, documents and life story – unable to obtain official documentation and functionally stateless – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 376
Migration Regulations 1994 (Cth), Schedule 2, 820.226, Schedule 4, criterion 4020(2A)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
GJDB (Citizenship) [2023] AATA 3245
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 28 July 2023 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 1 April 2020. 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). This was because the delegate was not satisfied as to the applicant’s identity as a consequence of which the applicants did not meet Public Interest Criterion 4020.
The applicant appeared before the Tribunal on 29 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife [Ms A] and sister-in-law [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.
Non-disclosure certificate
The Tribunal has before it the departmental file relating to the refusal of the partner visa. The delegate has placed restrictions on some of the material given to the Tribunal by the…

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 2311969 (Migration)

Details

AGLC: 2311969 (Migration) [2025] ARTA 1666
Case: [2025] ARTA 1666
Decision Date: 17 July 2025

CaseChat Overview and Summary

The case involved a visa applicant appealing a decision to refuse a Partner (Temporary) (Class UK) visa. The applicant had provided an identity document which was a UNHCR card issued in a third country, which had discrepancies in the spelling of names and places, and which was not the official documentation typically required. The applicant was functionally stateless and unable to obtain official documentation, leading to the Tribunal reviewing the application on the basis of the information provided and the country information available. The primary issue was whether the applicant satisfied the Public Interest Criterion 4020 (PIC 4020), which requires the applicant to not have provided false or misleading information, among other criteria.

The Tribunal considered whether the applicant had provided false or misleading information, whether the applicant met the identity requirements, and whether the applicant had a history of visa refusals due to failure to meet PIC 4020. The Tribunal found that there were compelling circumstances that justified waiving the requirements of providing false or misleading information, as the discrepancies in the identity document were due to the applicant's illiteracy and difficulties in interpreting and recording complex information. The Tribunal also noted the supporting statements from family and the community organisation, as well as the country information and department's policy guidelines.

The Tribunal concluded that the applicant satisfied PIC 4020, as there were no false or misleading statements provided in a material particular, and the identity requirements were met despite the discrepancies in the UNHCR card. The Tribunal set aside the decision under review and remitted the application for a Partner (Temporary) (Class UK) visa for reconsideration, finding that the applicant met the criteria for a Subclass 820 (Spouse) visa. The Tribunal emphasised the importance of considering the applicant's unique circumstances, including their statelessness and the difficulties in obtaining official documentation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In view of the importance of the contents of the identity assessment to the matters to be determined by this Tribunal, the Tribunal discussed that information with the applicant at hearing and wrote to him pursuant to section 359A setting out a summary of that information after the hearing. The Tribunal notes that the primary documents referred to in the identity assessment, including records of interviews and earlier visa applications, were not contained in the materials provided to the Tribunal by the Department.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.

Decision

Reasons for decision

On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 820.226.DECISION The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:·Public Interest Criterion 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations Date(s) of hearing: 29 May 2025Representative for the Applicant: Mr Philip Alan West (MARN: 1680879)ATTACHMENTMigration Regulations 1994Schedule 44020(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.…Migration Act 1958s 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.…

Ratio Decidendi

Legal Principle Established

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