2319455 (Migration) - [2025] ARTA 453

2319455 (MIGRATION) [2025] ARTA 453 (25 FEBRUARY 2025)

2319455

DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2319455

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 25 February 2025

Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 25 February 2025 at 2:45pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Federal Circuit Court remittal – false and misleading information – bogus document – birth certificate – allegation of a contrived relationship – relationship ceased – allegation of family violence – paternity issue – physical assault – no evidence of pooled financial resources – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 359, 375, 376
Migration Regulations 1994, Schedule 2, cls 801.221, 801.226; Schedule 4, Public Interest Criterion 4020; r 1.15
Status of Children Act 1974 (Vic)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
He v MIBP [2017] FCAFC 206
Trivedi v MIBP [2014] FCAFC 42
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 September 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 March 2013. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.801.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate concluded the applicant did not meet the requirements of Public Interest Criterion 4020 because he had provided false and misleading information in a material particular, namely his parents knowledge and endorsement of the applicant’s relationship with the sponsor.
The applicant applied for review of the Department’s decision, which was dated 28 September 2015. The Tribunal (differently constituted) in a decision record dated 13 October 2017, affirmed the decision of the Department, and concluded that a false or misleading information was given by the applicant in relation to his parents’ knowledge and endorsement of his relationship with the sponsor, and a bogus document was provided in relation to the birth certificate of the claimed child of the applicant and the sponsor.
The applicant appealed the decision of the Tribunal dated 13 October 2017. The judgement of the Federal Circuit and Family Court of Australia (Division 2) dated [in] October 2023, remitted the matter back to the Tribunal to redetermine its review, on the basis that the Tribunal’s decision was affected by jurisdictional error as the Tribunal does not make any finding there was an element of fraud or deception involved in the provision of information given to…

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 2319455 (Migration)

Details

AGLC: 2319455 (Migration) [2025] ARTA 453
Case: [2025] ARTA 453
Decision Date: 25 February 2025

CaseChat Overview and Summary

This case involved an application by the applicant for a Partner (Residence) (Class BS) visa, subclass 801 (Spouse). The application was remitted by the Federal Circuit Court for review, raising questions about the authenticity of the relationship between the applicant and the visa sponsor. The dispute included allegations of a contrived relationship, a physical assault, and a claim of family violence by the applicant.

The primary legal issues for the court to determine were whether the applicant met the requirements of the primary criteria set out in s.5F(2) of the Act, specifically if the applicant was the spouse of the sponsor prior to the cessation of the relationship. Additionally, the court needed to ascertain if the relationship genuinely ceased and if the applicant had provided sufficient evidence to support a claim of family violence. Furthermore, the court had to consider if the applicant met the evidentiary requirements for a claim of family violence and whether the applicant satisfied the family violence criteria.

The court examined the evidence provided by the applicant, including a birth certificate that was deemed bogus and allegations of a contrived relationship. The applicant's claims of family violence and the cessation of the relationship were scrutinized. The court found no evidence of pooled financial resources and determined that the nondisclosure certificate was invalid due to prior disclosure of the information. The court concluded that the applicant had not satisfied the requirements of PIC 4020 for the purposes of cl.801.226, and affirmed the decision under review.

The final orders affirmed the decision of the primary decision-maker that the applicant did not satisfy the requirements of cl.801.221 and therefore did not meet the criteria for the visa. The application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant’s representative advised the documents covered by the s.376 certificate had been included in the appeal court book, and therefore had been provided to the applicant by the Department. The information is three folios of an allegation made to the Department by the person claiming to be the biological father of the child [Child A], including that the allegation between the applicant and the sponsor was a contrived relationship. The applicant’s representative provided this information to the Tribunal prior to the hearing to confirm it was the same information. The Tribunal has determined that the nondisclosure certificate is invalid on the basis that the information has already been disclosed and any direction that it not be disclosed is therefore meaningless. The Tribunal is satisfied based on the information provided by the applicant, that this information has already been disclosed to the applicant, and the Tribunal does not need to provide this information or put this information to the applicant.Evidence provided by the applicant The Tribunal sent an email to the applicant on 6 January 2025 setting out that the issues to be canvassed in the review included whether the applicant met the requirements of PIC 4020(1), and if not, whether there are circumstances that justify those requirements being waived pursuant to PIC 4020(4). The Tribunal advised that consideration of the waiver may include whether the applicant and the sponsor were in a spousal relationship within the meaning of s.5F(2) of the Act, prior to the cessation of the relationship. The Tribunal provided the applicant with a copy of PIC 4020, the definitions in s.5F(2), and the Schedule 2 requirements set out for Subclass 801 Partner visas. The Tribunal is satisfied the applicant was on notice of the issues to be determined in the review. The applicant had provided the Tribunal with a complete copy of the appeal Court Book, without identifying which of these documents had not previously been provided to the Department or the Tribunal, and without identifying the relevance of any of the documents contained in the Court Book. The Tribunal had originally scheduled a hearing for 13 February 2025 and received hundreds of folios and late submissions from the applicant, which did not identify the issues to be determined in the review. The Tribunal was concerned that it was unable to properly prepare for the hearing, or to identify the submissions or claims the applicant was making that were relevant to the review. Accordingly the Tribunal postponed the hearing from 13 February 2025 to 17 February 2025. The Tribunal issued a direction dated 11 February 2025, directing the applicant list and identify any and all of the documents in the court book of 253 pages, which had not previously been provided by the review applicant to the Tribunal or to the Department, and are set out the relevance of these documents (if any). The Tribunal also directed that the applicant list, identify and set out the relevance of any document the review applicant has provided and wishes the Tribunal to rely on in relation to issues to be determined in the review. The Tribunal also directed the applicant set out a list of all witnesses who would attend the hearing and provide a brief outline of their evidence, and the relevance of their evidence to the issues to be determined in the review.

Decision

Reasons for decision

On the basis of the above, the applicant satisfies the requirements of PIC 4020 for the purposes of cl.801.226.Assessment of the time of decision cl.801.221 criteria The applicant first applied for the visa on 12 March 2013, which is nearly 12 years ago. The applicant provided information to the Tribunal relevant to his relationship with the sponsor and his claims for family violence. The applicant’s representative’s submission dated 13 February 2025, and the information and evidence provided by the applicant to the Department and to the Tribunal included information about the relationship between the applicant and the sponsor, the cessation of the relationship between the applicant and the sponsor, and the applicant’s claim that he experienced relevant family violence during the relationship. The Tribunal discussed with the applicant that the application for the visa, and the process of review and appeal had been going on for far too long, and it was appropriate to consider all these issues. The applicant had submitted to the appeal court that these issues of the spousal relationship and the claims the applicant experienced family violence, were material to the issue of whether the applicant met the requirements of PIC 4020. The Tribunal accepted the submission that the applicant had provided all the information and evidence in support of the determination of the criteria for the partner visa in cl.801.221. The Tribunal is satisfied that the applicant was prepared to give evidence and present arguments and had provided all relevant information and evidence, and was aware the issues of the whether the applicant met the requirements of cl.801.221, were issues to be determined in the review. The Tribunal had advised the applicant in correspondence dated 6 January 2025, that issues to be determined in the review, and relevant to the review, included whether the applicant was the spouse of the sponsoring partner within the meaning of s.5F(2) prior to the cessation of the relationship. The Tribunal had provided the applicant with a copy of s.5F(2) of the Act, and cl.801.221. The Tribunal discussed in the hearing on 17 February 2025 that it would proceed to determine the issues as to whether the applicant and the sponsor had been in a genuine spousal relationship, whether that relationship ceased, whether they applicant had provided information that met the evidentiary requirements for a claim of family violence, and whether the applicant met the family violence criteria. The applicant applied to the visa on 3 April 2023 on the basis of his relationship with his sponsor. Relevantly to this matter, primary criteria include cl.801.221, which require the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased, and that certain circumstances exist. These can include that the applicant, or a member of the family unit, has experienced family violence committed by the sponsor , pursuant to cl.801.221(6)(b) and (c). In this case the applicant claims the relationship with the visa sponsor has ceased, and that he has been the victim of family violence.

Ratio Decidendi

Legal Principle Established

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