CHEN (Migration)

[2019] AATA 3712

CHEN (Migration) [2019] AATA 3712 (1 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cen CHEN

CASE NUMBER:  1833695

DIBP REFERENCE(S):  CLF2016/11114 CLF2018/361123

MEMBER:Kira Raif

DATE:1 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 July 2019 at 7:48am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – false or misleading information – fabricated evidence about relationship with sponsor – inconsistent evidence – psychologist’s report inadequate – sponsor withdrew sponsorship – claimed family violence – no compassionate or compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 801.226, 820.211, Public Interest Criterion 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

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 Immigration on 2 November 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in January 1988. He applied for the visa on 18 June 2013. The applicant was granted the temporary Partner visa in November 2013 but the delegate refused to grant the permanent visa on the basis that the applicant did not satisfy the requirements of cl.801.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion (PIC) 4020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 17 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.801.226 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 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).

5. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons 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).

6. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5). 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.

7. 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.

8. 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.

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

9. The applicant provided to the Tribunal a copy of the primary decision record. It sets out the background to the application and the history of the applicant’s claims. The primary decision record indicates that following the withdrawal of sponsorship, the applicant claimed that he had suffered family violence. He was referred to an independent expert (IE) for assessment by the delegate and the IE found that the applicant did not suffer family violence. On review, the applicant was referred by the Tribunal for another assessment by IE. In December 2017, the IE found that the applicant did suffer relevant family violence.

10. The primary decision record indicates that in his application submitted in June 2013 the applicant stated that he and the sponsor met in February 2010 and that they were introduced by a friend of the applicant’s mother. The applicant stated that they moved in together and committed to a shared life to the exclusion of all others in January 2011. They married in July 2011.

11. In March 2016, May 2016 and December 2017 the applicant was interviewed by IEs in relation to his claims of family violence. During these interviews, the applicant advised the IE that he met the sponsor in March 2011 through a newspaper dating advertisement and that they were married in July 2011. When questioned about this inconsistency in dates by the IE during the interview, the applicant stated that the dates provided to the Department were incorrect but he could not explain why.

12. The delegate wrote to the applicant seeking his comment on the above information, noting that it may indicate that he provided information that was false or misleading in a material particular. The applicant replied through his representative by stating that PIC 4020, which was in effect at the time his application was made, did not apply to IEs, so that any provision of false or misleading information to an IE cannot form the basis of a finding that the applicant does not meet PIC 4020. The applicant also claims that he did not ‘provide’ the false or misleading information and that the false or misleading information was given to the Tribunal by the IE so that PIC 4020 does not arise.

13. In his response, the applicant provided various documents concerning his relationship with the sponsor. These included a statement from a real estate agent confirming that the applicant and sponsor were tenants together from January 2011, company registration documents and a number of declarations stating the relationship started in 2010.

14. In his declaration dated 4 October 2018 and the covering submission, the applicant states that the information he gave to the Department was correct and the information he gave to the IEs was not correct. The applicant states that he is not able to handle tasks and recall things normally. If he feels under pressure or nervous, he can sometimes forget things or lose track of things. Also, he did not receive much education and since he was a child, he has been disorganised, forgetful and had difficulties being focussed. He felt he was being interrogated and felt under pressure during the interviews, he was nervous and anxious. He suffered a memory lapse and gave the wrong date when he met his partner. It was not on purpose. The applicant argues that as an independent body, it was the IE and not him who gave false or misleading information to the Minister or the Tribunal.

15. The applicant also provided to the delegate a brief psychological report from Dr Zhang, who states that ‘it is more likely than not” that the applicant provided erratic information to the IE on the timing of meeting the sponsor. Dr Zhang states that his opinion is based on the fact that the applicant’s cousin reported being worried about the applicant being unable to explain things accurately and logically. The Tribunal is mindful that this may be caused by a health condition affecting the applicant or the truthfulness of the applicant’s evidence. Dr Zhang states that the applicant was a below average school student and had difficulties with concentration and only completed eight years of schooling. He only studied English for half a year after coming to Australia, had difficulties remembering things and lost interest in things quickly. Dr Zhang states that the applicant appeared to be shy, anxious and reserved on mental state examination and gave an impression that he was not a cognitively sharp person and was slow in thinking and speech. Dr Zhang states that the inconsistencies in dates were caused by the applicant’s anxiety and genuine memory error rather than an act of dishonesty.

16. The Tribunal does not accept that evidence. Firstly, Dr Zhang’s report fails to adequately identify the basis of his findings and conclusions. If the information about the applicant’s apparent lack of concentration and memory error causing the inconsistencies in evidence was provided by the applicant, the Tribunal is of the view that such information would be self-serving and unreliable. The report does not indicate that a thorough assessment of the applicant’s capacity was completed. Dr Zhang refers to a ‘mental state examination’ but fails to identity what that examination entailed or what medical findings were made as a result of it. The Tribunal considers the assessment that the applicant ‘appeared shy, anxious and reserved’ does not necessarily support Dr Zhang’s conclusion that the applicant has poor memory and is incapable of remembering information about his relationship. Put simply, there is insufficient evidence in Dr Zhang’s report to support his conclusions.

17. The Tribunal also considers it problematic that, according to the primary decision, the applicant gave consistent information to the three IEs, on three separate occasions months apart, about the initiation of his relationship with the sponsor. If the applicant’s ability to recall and his concentration was as poor as Dr Zhang describes, it is inexplicable, in the Tribunal’s view, that the applicant was able to recall with such precision over a period of many months the information about his relationship with the sponsor. There is no explanation in Dr Zhang’s report for the applicant’s ability to do that, given his claimed inability to recall events or express himself.  For these reasons, the Tribunal considers Dr Zhang’s report inadequate and gives it no weight.

18. In oral evidence to the present Tribunal, the applicant said that he did not mean to provide false or misleading information. The applicant states that when he met the first IE, he was very nervous and also when he was interviewed, a long time had passed since the relationship. The applicant said that during the first interview with the IE, he was constantly interrupted and he felt that the expert’s attitude was not good towards him. The applicant also said that his memory was confused. The applicant stated that he memorised the date of March 2011 because that was the date when his ex-wife divorced her husband but because he was too nervous, he said it was the date he met his wife.

19. The Tribunal does not accept the applicant’s explanations. First, as noted above, the applicant gave consistent evidence in his three interviews with the IEs and the Tribunal does not accept that if the inconsistencies were due to the applicant being confused or forgetful, that he would give consistent evidence in three interviews conducted over a year.

20. Second, the applicant had the opportunity to correct any mistakes after the interviews were completed. The Tribunal is also mindful that the applicant was represented by several migration agents throughout the process. If the applicant believed the information he had given during his interviews was incorrect or inaccurate, the applicant had the opportunity to contact the IEs after the interviews to correct the information and he had ample time to make such contact. There is no evidence that the applicant has done that.

21. Third, the issues were not only with the specific dates but also with the period of time. Either the applicant and the sponsor met in March 2011 and married in July 2011, only a few months after their initial meeting, or they met in 2010 and married a year and a half after their initial meeting. While it may be understandable that the applicant may not recall the precise date of his meeting his partner, the Tribunal does not accept that the applicant would be too confused or forgetful to know whether he and his partner committed to a relationship and married within a few months of meeting each other or within a year and a half.

22. Fourth, the applicant appeared to have had no difficulty discussing other aspects of his relationship, including the claimed family violence, with the IEs. The applicant’s claimed forgetfulness, lack of education, shyness, dislike of the IE or any other factors to which the applicant now refers did not appear to affect his capacity to present evidence in relation to other aspects of the relationship and the family violence. The Tribunal is not satisfied that the applicant’s forgetfulness only related to the circumstances of his meeting his partner but not the other aspects of the relationship, including various events, which constituted family violence.

23. Fifth, the applicant also gave inconsistent evidence about the circumstances of the meeting and not only the timing. Thus, on one hand the applicant claims to have been introduced to the sponsor by a friend or a relative and on another hand, he claims they met through the newspaper. Even if the applicant incorrectly memorised March 2011 as the date when they met, rather than the date of the sponsor’s divorce, as he now claims, this claimed mistake does not explain other discrepancies in the applicant’s evidence. The applicant explained to the Tribunal that they were introduced by a relative but his wife also advertised for marriage and he saw the advertisement but that does not explain why the applicant offered two completely different versions about the circumstances of the meeting. The Tribunal is mindful that in his statement, which accompanied the application, dated 1 June 2013, the applicant made no reference to the newspaper advertisement, stating that they met through a relative whereas a claim that they met through the newspaper advertisement, made to the IE, suggests there was no personal interaction between them other than the newspaper ad.

24. As for the passage of time, the Tribunal notes that the applicant’s evidence to the present Tribunal was broadly consistent with the information he gave in his written statement of 1 June 2013. If the applicant was able to recall that evidence to the Tribunal in June 2019, the Tribunal is not satisfied that the applicant would not have been able to do the same in his interviews with the IEs, which were conducted in 2016 and 2017.

25. In his written submission to the Tribunal of 25 June 2019, the applicant submits that Dr Zhang refers to ‘memory error’ rather than a memory lapse and a memory error may occur when a person incorrectly mixes up the dates of different events. This is consistent with the applicant’s oral evidence that he referred to the date of the sponsor’s divorce as the date when the relationship commenced. The Tribunal does not accept that evidence because, as noted above, the inconsistency in dates was put to the applicant by the IE and the applicant was specifically given the opportunity to re-think his evidence. Also as noted above, the applicant had ample opportunity after each of the IE interviews to correct the evidence that he claims was erroneous. The Tribunal also considers it significant that the discrepancies arose not only in relation to the dates but also the circumstances of his meeting with the sponsor, which cannot be explained by the applicant incorrectly recalling the date of the wrong event.

26. The applicant told the Tribunal that in 2015 he was incorrectly accused of family violence and he was jailed and it was a severe blow for him. He was not treated well and this incident had a significant effect on him. Afterwards, he continued to see a psychologist and according to the psychologist, this incident has affected his short-term memory. The Tribunal does not accept that evidence. As noted above, the applicant gave conflicting oral evidence to the present Tribunal and in his initial statement dated 1 June 2013. The Tribunal does not accept that his claimed memory loss and psychological effects had only affected the applicant’s capacity to give evidence in the three IE interviews but not in his evidence to the present Tribunal. The applicant also explained to the Tribunal that his lawyer told him what the correct dates were and that he was previously wrong. It is of some concern to the Tribunal that the applicant claims that he was told what to memorise by his representative.

27. The primary decision record also indicates that the inconsistences in the dates were specifically put to the applicant by the IE and the applicant was asked to comment on such inconsistencies. It is stated that the applicant could not explain satisfactorily why the information given to the Department was different to the information he gave to the IE. Again, the Tribunal is of the view that if the applicant was genuinely confused or forgetful about the dates that would have become apparent to him when he was put on notice by the IE and the applicant had the opportunity to correct the information.

28. The applicant told the Tribunal that he had a close relationship with his stepson and was like a father figure to him and always bought gifts for his birthday. However, he gave the Tribunal the incorrect date and year of birth for the child. When asked why he could not recall that date, given his evidence of a close relationship and his express reference to the child’s birthday, the applicant said that his memory is poor. For the reasons stated above, the Tribunal does not accept that the applicant has poor memory and that the deficiencies in his evidence are caused by the poor memory or any other medical condition. As noted above, the applicant had no difficulty recalling other dates in his oral evidence to the Tribunal. In the Tribunal’s view, the applicant’s ability to do so was because he had memorised the evidence, rather than recalled the genuine events.

29. Ultimately, the Tribunal has formed the view that the applicant had fabricated evidence about his relationship with the sponsor and memorised the dates and the sequence of events for the purpose of the hearing and his interviews with the IEs. The Tribunal has formed the view that he memorised incorrect information in the IE interviews and that is the reason he consistently gave different dates in those interviews. The Tribunal is of the view that such errors would not have occurred if the applicant’s evidence related to true events, rather than the fabricated history of his relationship with the sponsor. The Tribunal reaches that view despite the applicant’s claim of poor memory and poor mental state. The Tribunal has rejected that evidence for the reasons given above.

1. The Tribunal acknowledges the applicant’s submission that there is documentary evidence of the relationship starting in 2010 and not in 2011 and that implies that the information given to the Department, rather than the IE, was correct. However, the Tribunal has formed the view that the applicant is not a witness of credibility and that the entirety of his evidence concerning his relationship with the sponsor has been fabricated. The Tribunal accepts that there is documentary evidence of a relationship commencing in 2010, including photographic evidence, statements from third parties, a rental agreement from January 2011 and other materials. The existence of such evidence is not sufficient to satisfy the Tribunal that the applicant and the sponsor established a genuine relationship when the applicant claims or in circumstances that the applicant claims. It is entirely possible, in the Tribunal’s view, to obtain supporting documentary evidence, of the nature presented by the applicant, whether or not there was a genuine relationship between the applicant and the sponsor.

2. The applicant’s representative submits that there needs to be caution when considering which version – one given to the Department or one given to the IEs – was incorrect. For the reasons stated above, the Tribunal has formed the view that both versions are incorrect because the applicant had fabricated the evidence about the circumstances of meeting the sponsor. Thus, while the information given to the IEs about the March 2011 meeting was clearly incorrect – given the joint rental agreement showing cohabitation from January 2011 – that does not satisfy the Tribunal that the information given to the Department was in fact correct. The Tribunal has formed the view that the applicant is not a witness of credibility and that he has falsified the entirety of the information about the development of his relationship with the sponsor. The Tribunal has formed the view that this is the reason for the inconsistencies and deficiencies in the applicant’s evidence. The Tribunal has formed the view that the information the applicant gave to the Department about his relationship with the sponsor, was false or misleading.

3. The Tribunal finds that there is evidence that the applicant has given, or caused to be given, to the Minister or an officer, ‘information that is false or misleading in a material particular’. That information concerned the development of the applicant’s relationship with the sponsor and was relevant to assessing whether the applicant was the spouse of the sponsor. It is relevant to the requirements of cl. 820.211 (which is a visa held by the applicant in the 12 months before the application was made) and to assessing whether the family violence occurred during the relationship, for the purpose of cl. 801.221. The Tribunal finds that the information was false or misleading in a material particular and it was given in relation to the visa application or a visa held in the 12 months before the visa application was made. The Tribunal finds that the applicant does not meet PIC 4020(1).

4. The Tribunal acknowledges the applicant’s evidence relating to the interpretation of PIC 4020 and whether an IE can be considered an ‘officer’, so that false or misleading information given to the IE can fall within the requirement not to give false or misleading information in PIC 4020(1). The Tribunal has formed the view that the applicant had given information that was false or misleading to the delegate with his visa application and, as such, the Tribunal does not need to determine whether an IE is an ‘officer’ for the purpose of PIC 4020(1).

   Should the requirements of PIC 4020(1) or (2) be waived?

5. 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 r.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.

6. 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.

7. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

8. The applicant told the Tribunal that he has been living in Australia since he was 16 years old and his entire life is in Australia. His mother and his extended family are in Australia. The applicant confirmed that his mother holds a Bridging visa, so she has no right to remain in Australia on a temporary or permanent basis and the Tribunal is not satisfied that she is a permanent resident of Australia. The applicant also told the Tribunal that his father remains in China. Thus, the Tribunal does not accept that the applicant has no family in China. In any case, the applicant is an adult and, in the Tribunal’s view, is capable of establishing an independent life in China, even without family support. The Tribunal accepts that the applicant is settled in Australia but the Tribunal does not consider these matters, either singularly or cumulatively, establish compelling or compassionate circumstances affecting the interests of Australia or of others.

9. The applicant himself did not claim there are any compassionate or compelling circumstances in his case.

10. The applicant’s representative submits that the existence of a genuine relationship cannot be doubted and the applicant has been a victim of family violence. The representative submits that this in itself indicates a compelling circumstance in the interest of Australia because it is in the interest of Australia that victims of family violence should be protected. The Tribunal does not accept that claim. First, as noted above, the Tribunal is not satisfied that the applicant did have a genuine relationship with the sponsor, as the Tribunal has formed the view that the applicant has falsified evidence of his relationship and that he is generally not a credible witness. Second, the applicant’s own evidence is that the information he gave to the IEs was incorrect and the IE assessment is based on false or misleading information. While the Tribunal has formed the view that it is the information the applicant gave to the Department that was false or misleading, that does not exclude the possibility that the information the applicant gave to the IEs was also false or misleading. In particular, the Tribunal has noted that the information given to the IEs about the relationship commencing in March 2011 was incorrect given the documentary evidence of the earlier commencement of the relationship.

11. If the Tribunal were to accept that the applicant is a victim of family violence, the Tribunal does not consider this to give rise to a compelling circumstance that affects the interests of Australia. The Tribunal accepts the representative’s submission that family violence is considered very seriously in Australia and that protection of victims of family violence is a significant consideration. However, the Tribunal is not satisfied that such matters affect the interests of Australia. That is, even if it can be said that the applicant is a victim of family violence, in the Tribunal’s view, that is not sufficient to establish that the circumstance are of a compelling nature. Nor is the Tribunal satisfied that the applicant being a victim of family violence would be a circumstance that affects the interests of Australia.

12. The applicant also referred to having a close relationship with his step-son. However, the applicant’s evidence is that he has had little or no contact with the child since his separation from the sponsor and it does not appear that his relationship with the child continues. In such circumstances, the Tribunal is not satisfied that the applicant’s relationship with the sponsor’s child, even if it was ever a close one, constitutes a compelling or a compassionate circumstance.

13. On the evidence before it, the Tribunal is not satisfied that compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen exist that justify the granting of the visa. Therefore, the requirements of PIC 4020(1) should not be waived.

14. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.801.226.

    DECISION

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

    Kira Raif
    Senior Member