CHEN (Migration)

[2022] AATA 3269

CHEN (Migration) [2022] AATA 3269 (11 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Mei Chen

VISA APPLICANTS:  Mr Changqing Li
Mr Tianci Li

REPRESENTATIVE:  Miss Vivian Wei Wei Wang (MARN: 0853910)

CASE NUMBER:  1820315

HOME AFFAIRS REFERENCE(S):          BCC2016/1294515

MEMBER:Mila Foster

DATE:11 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits for reconsideration the application for a Partner (Provisional) (Class UF) visa made by the first named visa applicant with the direction that he meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

The Tribunal affirms the decision not to grant the second named visa applicant the Partner (Provisional) (Class UF) visa.

Statement made on 11 August 2022 at 5:39pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – bogus marriage certificate – false information about marital status in China – compassionate or compelling circumstances – mental health issues – valid marriage – genuine and continuing relationship – member of the family unit – dependent child – secondary applicant in partial employment – incapacity for work – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 309.225, 309.321; Schedule 4, Public Interest Criterion 4020; rr 1.03, 1.05, 1.09, 1.12

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 Home Affairs on 12 June 2018 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 March 2016. The first named visa applicant applied for the visa on the basis that he was in a spouse relationship with the review applicant. The second named visa applicant applied for the visa on the basis that he was a member of the family unit of the first named visa applicant.

3. The delegate refused to grant the visas on the basis that the first named visa applicant did not meet Public Interest Criterion 4020 (PIC 4020) as required by cl 309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate found that the marriage certificate issued with respect of the first named visa applicant’s marriage to the review applicant was obtained on the basis of false information about his previous relationship and hence was a bogus document.

4. The review applicant appeared before the Tribunal on 12 July 2022 via video to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the first named visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   consideration of claims and evidence

6. The issues in this review are whether the first named visa applicant meets PIC 4020 as required by cl 309.225 and whether the second named visa applicant is a member of the family unit of the first named visa applicant.

7. Broadly speaking, PIC 4020 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).

8. 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). PIC 4020 is extracted in the attachment to this decision.

9. The Tribunal has before it the Department of Home Affairs file relating to the visa application. In addition to the oral evidence given at the hearing, supporting documentary and photographic evidence was provided on review. The Tribunal also has had access to the Department movement records relating to the review applicant.

   Background

10. According to the first named visa applicant’s passport he is a 52-year-old Chinese national.[1] According to the delegate’s decision record, he came to Australia in 2006 on a one-month short stay business visa and then remained in Australia on a series of bridging visas until he departed on 6 January 2016.

    [1] Photocopy provided to the Department.

11. According to the review applicant’s passport she is a 54-year-old Australian national.[2]

    [2] Photocopy provided to the Department.

12. It was claimed in this visa application that the parties met on 25 December 2012, committed to a shared life together to the exclusion of all others on 27 December 2014 and married on 9 April 2015.

13. According to the visa application both the first named visa applicant and the review applicant had previous relationships. It was claimed that the first named visa applicant had been in a de facto relationship with Hongxia Shi from March 1990 until May 2008, and the review applicant had been married from September 2000 until December 2004 when the marriage ended by divorce. According to the parties’ marriage certificate, the first named visa applicant had never been validly married and the review applicant had been divorced.

14. It is claimed that the first named visa applicant had two children with his former de facto partner, the second named visa applicant and a daughter. According to the second named visa applicant’s passport he is a 26-year-old Chinese citizen.[3]

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

    [3] Photocopies provided to the Department.

15. 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.

16. 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.

17. 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.

18. On 20 June 2017 the Department wrote to the first named visa applicant requesting more information and evidence to support his visa application including evidence that his relationship with his ‘former spouse or de facto partner’ had ended. In response the first named visa applicant submitted documents which included his hukou (household registration book) which was issued on 12 December 2013 by the Yaopu Town Police Station. The hukou stated that the first named visa applicant’s marital status was ‘divorced’.

19. On 15 August 2017 the Department wrote to the first named visa applicant stating that the hukou raised doubts about the genuineness of the parties’ relationship given he had claimed to have previously been in a de facto relationship and the parties’ marriage certificate stated he had never been validly married. The first named visa applicant was invited to comment on the matter. On 10 November 2017 the first named applicant provided a statement made on 21 August 2017 by Officer Wei Luan of the Yaopu Town Police Station. Officer Luan stated that the first named visa applicant had cohabited with Ms Shi without marrying from March 1990 until May 2008.  

20. According to records on the Department file and as noted in the delegate’s decision record the Department subsequently obtained information from the Yaopu Police Station that a person’s marital status will only be changed on the hukou upon evidence being presented that they had married or divorced. On 7 March 2018 the Department wrote to the first named visa applicant informing him of this information. The Department also advised that it was the Department’s understanding that de facto relationships are not formally recognised in China and hence not recorded in a hukou, and that both parties must attend a divorce hearing which it would appear he would not have been able to do before his marriage to the review applicant. The Department put to the first named visa applicant that this indicated that in registering his marriage to the review applicant in NSW, he had provided false information about his marital status in China and hence the NSW marriage certificate issued in relation to his marriage to the review applicant was a bogus document having been obtained on the basis of false information. It appears that several documents were submitted in response to this letter but none were written in English despite requests for translations to be provided. The delegate’s decision record contains translations of the documents provided by a Mandarin speaking officer of the Department.[4]

    [4] At the hearing the Tribunal informed the review applicant that in the absence of accredited English translations it would have to rely on the translations recorded in the delegate’s decision record. The review accepted this and did request the opportunity to provide accredited translations.

21. According to the translations, the documents were statements from the first named visa applicant, his sister, three of his neighbours in China, his sister-in-law and Officer Luan. The first named visa applicant stated that he and his former de facto partner began living together in March 1990 because they were underage to marry legally. He said they cohabited and never married but following a government census in 2002 they were registered in the hukou as a de facto couple. He said their relationship deteriorated after he remained in Australia and he authorised his sister in China to ‘handle procedures for ceasing cohabitation with Ms Shi’. He said his sister went to the People’s Court of Yaopu Town but was told the request could not be handled as he was not in China. The Yaopu Police Station declined her request for the same reason. He said his sister then approached Officer Luan who changed the first named visa applicant’s marital status in the hukou from ‘married’ to divorced’. The statements from his sister and Officer Luan contained similar information. The first named visa applicant’s neighbours and sister-in-law stated that he and Ms Shi had been in a de facto relationship and the relationship had ended. The delegate noted that none of the statements were accompanied by the identity documents of the authors of the statements. 

22. On review the Tribunal was provided with an English translation of a letter from Officer Luan dated 20 November 2018 in which he stated that as the first named visa applicant was in Australia and could not return he had authorised his sister to handle the ‘matter of the dissolution of cohabitation’ between himself and Ms Shi with the Yaopu Police Station. He stated that through ‘multiple investigations’ they found that from 1990 the first named visa applicant and Ms Shi had a ‘common law marriage’ for 16 years, they lost their ‘conjugal affections due to long-term separation’ and ‘their marriage existed in name only’. Hence, officer Luan stated, their marital status was changed to divorced in the household register.

23. At the hearing the Tribunal discussed with the review applicant the information the Department had put to the first named visa applicant about his previous relationship. She stated that she did not accept that the first named visa applicant had provided false information or a bogus document. She said he had told her he had a de facto partner because they had not reached the legal age to marry and both sets of parents allowed them to live together. She said the first named visa applicant and Ms Shi were added to the hukou as husband and wife based on their de facto relationship as a result of the 2002 census and then Officer Luan changed their status to divorced because he knew what happened in their area and knew their status. She said that as their marital status was changed by a police officer they believed it was legal and in accordance with procedure. She said that as Officer Luan was the officer responsible for the area, she believed the first named visa applicant – that he had only every been in a de facto relationship with Ms Shi.

24. The Tribunal notes that the neither the letter of 15 August 2017 nor the delegate’s decision record revealed all the information provided by the Yaopu Police Station. According to a case note on the Department file dated 30 October 2017 the Yaopu Police Station had also revealed that its records stated that the first named visa applicant was married and Ms Shi was recorded as his wife. Further, that a person may have presented their divorce certificate at the police station counter but it may not have been updated in the system. The Tribunal invited the review applicant to comment on or respond to this information at the hearing.[5] In response she suggested that perhaps the records on the Yaopu Police Station system regarding the first named visa applicant’s relationship had not been updated. Asked why Ms Shi would appear on the first named visa applicant’s hukou issued in 2013 if their relationship had ended in 2008, the review applicant stated that Ms Shi left the home then and the first named visa applicant was in Australia and so could not take care of the hukou; later his parents advised him to walk out of the shadow left by Ms Shi and start a new life so he decided to take care of the past and start a new life.

    [5] Pursuant to s 359AA of the Act.

25. The Tribunal informed the review applicant that according to information from the Australian Department of Foreign Affairs and Trade fraudulent documents in China are very common and that the scale of fraud is unmatched anywhere in the world.[6] The Tribunal put to the review applicant that this could raise doubts about the genuineness of the hukou and the statements submitted in response to the Department letter of 15 August 2017. The review applicant replied that she had been living in Australia for 20 years and so she was not sure about the situation in China but she believed her husband. 

    [6] Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China, 22 December 2021, [5.45].

26. The first named visa applicant told the Tribunal that his hukou was updated in January 2014. The Tribunal noted that it was issued in 2013. He then said that it was at the end of 2013 that he asked his sister to go to the relevant authorities to change his relationship status. He stated that the People’s Court in Yaopu would not process the change in the absence of a marriage certificate so she went to the Yaopu PSB[7] where she found Officer Luan. He said the police did a thorough investigation after which Officer Luan changed his hukou from married to divorced and thus he believed the change was made legally. He said he and Ms Shi began living together when they were 19 because they were not old enough to marry legally. Asked why they did not marry once they were of legal marrying age, the first named visa applicant did not answer that question. Instead, he stated that his family information was updated at the time of the national census in 2002 and it was common in the remote village he lived in for people not to register their marriage. The Tribunal questioned why his relationship with Ms Shi was recorded as married when de facto relationships were not officially recognised in China.[8] He replied that was the procedure of the Yaopu PSB.

    [7] PSB refers to a police station in China.

    [8] Chen, Y.C. 2002, ‘Civil Law Development: China and Taiwan’, Stanford Journal of East Asian Affairs, Vol.2, Spring, p.11.

27. The Tribunal finds that the information provided by the Yaopu Police Station to the Department is evidence that the first named visa applicant was married to Ms Shi prior to marrying the review applicant. As de facto relationships are not officially recognised in China, the Tribunal does not consider it credible that the Yaopu Police Station would have recorded the first named visa applicant as being married to Ms Shi during a census in 2002 if they were cohabiting but not married. The information provided by the Yaopu Police Station is independent information from an official source responsible for maintaining hukous. The Tribunal thus regards the information provided by the Yaopu Police Station about the first named visa applicant’s marital status as credible and prefers it to the information provided by the review applicant, the first named visa applicant, first named visa applicant’s sister, sister-in-law, neighbours and, for further reasons given below, the statements of Officer Luan. The Tribunal therefore finds that the NSW marriage certificate was obtained because of a false statement that the first named visa applicant had never been validly married.

28. Further, the Tribunal has concluded that the hukou issued on 12 December 2013 is either a counterfeit document produced by Officer Luan or was altered by Officer Luan without authority. Firstly, Officer Luan changed the first named visa applicant’s marital status even though according to the information provided to the Department by the Yaopu Police Station marital status on a hukou can only be changed if evidence of marriage or divorce had been provided. Secondly, Officer Luan made the change even though it is claimed the Yaopu People’s Court and Yaopu Police Station refused to do so without the first named visa applicant being present. Thirdly, if as Officer Luan claimed in his statement and the first named visa applicant emphasised at the hearing the change was made after a thorough police investigation, then the Tribunal expects that the change would have been recorded in the Yaopu Police Station system either by Officer Luan or the Yaopu police. Fourthly, DFAT information indicates a prevalence of fraudulent documentation in China.

1. For the above reasons the Tribunal finds that there is evidence before it that the first named visa applicant has given to an officer bogus documents as defined in s 5(1) of the Act in relation to the visa application. The first named visa applicant therefore does not meet PIC 4020(1).

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

2. The requirements of 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.

3. 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.

4. Essentially, the review applicant claimed in her evidence at the hearing that neither she nor the first named visa applicant had intended to lie to the Department or the Tribunal, it would be too difficult for her to return to China having lived in Australia for 20 years, and she was lonely and depressed without her husband and wanted to be reunited with him. As the review applicant’s passport indicates, she is an Australian citizen. The Tribunal has thus considered whether these matters give rise to compassionate or compelling circumstances that affect the interests of an Australian citizen which justify the granting of the visa and the waiving of the PIC 4020(1) requirements.

5. In light of the findings above the Tribunal is not satisfied that the first named visa applicant had not intended to lie to the Department or the Tribunal. That the review applicant has not intended to lie does not in the Tribunal’s view amount to compassionate or compelling circumstances.

6. The Tribunal does not accept that it would be difficult for the review applicant to return to China. She was born in China and lived there before migrating to Australia. She has no family in Australia – her close family members (her mother and sister) are in China. Further, she has provided documentary evidence that she has purchased a residence in China. The Tribunal finds that the review applicant would be well placed to return to China. Hence the Tribunal does not consider this to amount to compassionate or compelling circumstances that justify the granting of the visa.

7. The review applicant submitted a letter dated 1 October 2021 from her doctor stating that she had been experiencing symptoms of anxiety and depression in the last two months since the lockdown began and had started anti-depressants. The doctor stated that in the review applicant’s condition and living alone in Australia, family support was important both mentally and physically, and requested that the first named visa applicant’s application be processed as soon as possible. While the Tribunal accepts that the review applicant may have struggled mentally when the letter was written about 10 months ago, in the absence of current medical evidence it has given limited weight to this evidence in relation to the review applicant’s current mental health.

8. As it is a requirement for the grant of a Partner visa that an applicant be the spouse or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, the Tribunal does not regard the mere existence of a spouse or de facto relationship to be compassionate or compelling circumstances that justify the granting of the visa. However, the Tribunal is of the view that a longstanding relationship may be and hence has considered the parties’ relationship.  

9. ‘Spouse’ and ‘de facto partner’ are defined in s 5F and s 5CB of the Act respectively. To meet the definition of a ‘spouse’ the couple must be in a marriage recognised as valid for the purposes of the Act. As indicated above the Tribunal has concluded that the first named visa applicant was married to Ms Shi and found that the 2013 hukou is a bogus document. There is thus no credible evidence before the Tribunal that the first named visa applicant and Ms Shi were divorced before he married the review applicant. Hence, the Tribunal finds that the marriage between the first named visa applicant and the review applicant is not valid for the purposes of the Act.

10. Section 5CB requires a couple to not be in a married relationship, to have a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, and that the couple live together or not separately and apart on a permanent basis. When considering the definition in s 5CB the Tribunal must also consider all the circumstances of the relationship including the matters specified in reg 1.09A which concern the financial aspects of the relationship, the nature of the household, the social aspects of the representative and the nature of each person’s commitment to the other.

11. The visa application form contained no detail about the nature of the parties’ relationship. In response to the Department’s request for additional information and evidence, the Department received documents which included photocopies of remittances sent by the review applicant to a recipient in China, the review applicant’s phone bills, plane tickets to China issued to the review applicant, boarding passes for flights within China issued to the review applicant and the first named visa applicant, photographs annotated in Chinese, and what appear to be chat messages (written in Chinese).

12. Documents the review applicant submitted to the Tribunal included the review applicant’s will, documents relating to property the review applicant owned in China, a statutory declaration from Chao Lin who said she became a friend of the first named visa applicant in Australia, a statutory declaration from Mon Zhang who said she was a friend of the review applicant, a statement from the review applicant’s mother, a travel itinerary for a trip the review applicant made to China in February 2019, plane boarding passes issued to the parties in China, receipts for what were said to be parcels the review applicant sent to the first named visa applicant, more of the review applicant’s phone bills, annotated photographs said to have been taken in China in February 2019 showing the parties with their family and friends in various settings, receipts said to be for accommodation the parties shared in China, more remittances sent by the review applicant to a recipient in China, what was said to be WeChat history between 2019 and 2022 (in Chinese), and some English translations of some chat history which indicated that the review applicant and first named visa applicant had made video calls to each other.

13. The Tribunal found the oral evidence the review applicant gave at the hearing about her relationship with the first named visa applicant to be credible. It was specific and forthcoming and was consistent with the supporting evidence provided to the Department and on review.

14. It seems plausible and hence the Tribunal accepts that having left his wife and children in China to come to Australia in 2006 on a one-month visa and failing to return for two years his marriage to Ms Shi ended in or about 2008.

15. It has been consistently claimed and hence the Tribunal accepts that the parties met in 2012. It has been claimed and the Tribunal accepts that the parties began living together as a couple from December 2014 in the house owned by the review applicant. It is claimed and the Tribunal accepts that after the first named visa applicant returned to China, the review applicant visited him there and that during those visits they lived together in hotels as they preferred this to living at the two-bedroom home the first named visa shared with his parents and son. The review applicant’s movement records, the plane tickets, boarding passes and hotel receipts confirm that she travelled to China, travelled within China with the first named visa applicant and stayed in hotels with the first named visa applicant. It is claimed and the Tribunal accepts that since the COVID-19 pandemic the review has been unable to travel to visit the first named visa applicant.

16. It is claimed that while the parties lived together in Australia, the review applicant’s income went towards her mortgage payments and the first named visa applicant’s income covered the parties’ day to day expenses. The review applicant indicated at the hearing that the first named visa applicant contributed more financially while he was living in Australia because he earned more money here. She said he left her $30,000 and took $9,500 with him to China. It was claimed in the visa application that they had a joint bank account but no documentary evidence of such an account is before the Tribunal. There is no evidence that the parties have any major joint assets or liabilities. The Tribunal is nevertheless satisfied that the review applicant and first named visa applicant each made financial contributions to the relationship as claimed.

17. The review applicant said that after he returned to China she sent him money for a while. Although the name of the recipient of the remittances is written in Chinese the recipient’s address is in English and is that of the first named visa applicant. The Tribunal thus accepts that the remittances were sent to the first named visa applicant.

18. It is claimed and the Tribunal accepts that the parties represent themselves as a married couple (even though not validly married), that they went out together on weekends and played mah-jong with friends during the time the first named visa applicant lived in Australia. It is claimed and the Tribunal accepts that the parties have met each other’s family members during the review applicant’s visits to China to see the first named visa applicant. The photographs submitted by the parties show the parties in various social settings with various other people including with their claimed and family and friends. Statutory declarations from two of their friends in Australia support the claim that the parties represented themselves as a married couple and the friends expressed their belief that the parties’ relationship was genuine.

19. The parties expressed their commitment to each other at the hearing and desire to be reunited. The review applicant’s phone bills after 2016 indicate that the review applicant regularly and frequently called the first named visa applicant’s mobile. The WeChat histories also indicate frequent and regular contact between the parties.

20. Having considered all the evidence before it and having regard to the considerations in reg 1.09A the Tribunal is satisfied that since 27 December 2014 the parties have had a mutual commitment to a shared life to the exclusion of all others, been in a genuine and continuing relationship, and lived together until the first named visa applicant left Australia and have been living apart temporarily since then.

21. The Tribunal is thus satisfied that the review applicant and first named visa applicant have been in a de facto relationship since December 2014. The Tribunal finds that as a de facto relationship of 7 ½ years, the parties’ relationship is a longstanding one. In the Tribunal’s view the longstanding relationship along with the fact the review applicant has no family in Australia amounts to compassionate circumstances that affect the interests of an Australian citizen and which justify the granting of the visa. The Tribunal thus finds that the PIC 4020(1) requirements should be waived.

    Has the first named visa applicant satisfied the identity requirements?

22. PIC 4020(2A) requires an applicant satisfy the Tribunal as to their identity. Based on the first named visa applicant’s passport the Tribunal is satisfied as to his identity. The first named visa applicant therefore meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

23. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

24. There is no evidence before the Tribunal that the first named visa applicant or any member of the family unit has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A). Therefore PIC 4020(2B) is met.

    Conclusion – PIC 4020

25. On the basis of the above, the first named visa applicant does satisfy PIC 4020 for the purposes of cl 309.225.

    Second named visa applicant

26. The second named visa applicant applied for the visa on the basis that he was a member of the family unit of the first named visa applicant. He was refused the visa on the basis that he did not satisfy the secondary criterion in cl 309.321 which requires the applicant to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 Partner visa

27. It is claimed that the second named visa applicant is the child of the first named visa applicant and Ms Shi. The birth certificate provided to the Department confirms this. The Tribunal accepts that the second named visa applicant is the child of the first named visa applicant. The Tribunal notes however that according to a case note on the Department file dated 15 August 2017 the second named visa applicant applied for a student visa in March 2013 in which the name and date of birth he provided for his father was not that of the first named visa applicant. (The second named visa applicant was refused the student visa). Asked about this at the hearing both the review applicant and first named visa applicant were aware that the second named visa applicant had applied for the student visa but said they were unaware that the details he had provided for his father were not those of the first named visa applicant. As there is no credible documentary evidence to contradict the claim that the first named visa applicant is the second named visa applicant’s father the Tribunal has concluded that the information in the student visa application was either an innocent mistake or false information. 

28. ‘Member of the family unit’ is defined in reg 1.12. A person will be a member of another person’s family unit if he or she is a:

    ·     partner of the person; or

    ·     ‘dependent child’ of the person or the person’s partner; or

    ·     ‘dependent child’ of a ‘dependent child’ of the person or the person’s partner; or

    ·     ‘relative’ of the person or the person’s partner who:

    -   does not have a spouse or de facto partner

    -   is usually resident in the person’s household; and

    -   is ‘dependent’ on the person.

29. As the first named visa applicant’s son and on the claims and evidence, the second named visa applicant could only be the member of the family unit of the first named visa applicant if he is a ‘dependent child’ of the first named visa applicant.

30. ‘Dependent child’ is defined in reg 1.03 as the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner) being a child who:

    ·     has not turned 18; or

    ·     has turned 18 and:

    -is dependent on that person; or

    -is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

31. ‘Dependent’ is defined in reg 1.05A which states (relevantly) that a person (the ‘first person’) is dependent on another person if:

    ·     the first person is, and has been for a substantial period immediately before the relevant time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    ·     first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    ·     the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

32. Based on his birth certificate the second named visa applicant is now 26 years old. According to a certificate provided to the Tribunal he graduated from a secondary vocational school in July 2021. Medical evidence was presented to the Tribunal indicating he has been suffering insomnia and depression for about two years.  

33. The Tribunal discussed the issues of the second named visa applicant’s dependency and capacity to work with the review applicant and first named visa applicant at the hearing. The first named visa applicant indicated his son would be able to work ‘when he was better’. The review applicant and first named visa applicant said the second named visa applicant had stopped working on 1 July 2022 due to depression. The first named visa applicant said he had noticed the second named visa applicant had become depressed after he was fired from a previous job in about July 2021. He said the second named visa applicant was particularly depressed in July and August 2021 and he took the second named visa applicant to a doctor at the end of September 2021. This is consistent with a self-evaluation sheet completed by the second named visa applicant on 30 September 2021 and a clinical record dated 30 September 2021 although those documents indicate the second named visa applicant claimed to have been suffering insomnia and depression for one year. The treatment advised in the clinical record was psychological counselling. Similar clinical records were issued on 8 October 2021, 15 December 2021 and 24 June 2022.

34. The Tribunal accepts on the basis of the clinical records that the second named visa applicant has suffered from insomnia and depression for about two years. However, the Tribunal does not accept that the second named visa applicant has been incapacitated for work due to the total or partial loss of his bodily or mental functions or that he has been dependent on the first named visa applicant because he is suffering insomnia and depression as suggested. Even though the second named visa applicant has been suffering insomnia and depression since about mid-2020 he was nevertheless able to complete his vocational study during that time. Further, the medical evidence does not indicate that he has been diagnosed with significant or serious insomnia or depression which has impacted on his ability to work. In addition, the treatment suggested in the clinical records, psychological treatment and rest, does not indicate that the insomnia and depression was so severe that it had impacted on his ability to work. Nor is there any indication the second named visa applicant was prescribed anti-depressants or that his condition deteriorated over the two-year period. If the second named visa applicant was unable to maintain employment due to his condition as suggested by the first named visa applicant the Tribunal expects this would have been reflected in the treatment, diagnosis and health history of the clinical records.

35. The Tribunal is thus not satisfied on the evidence before it that at the time of decision the second named visa applicant has not been working since he graduated in July 2021. Nor is the Tribunal satisfied on the evidence before it that for a substantial period immediately before its decision the second named visa applicant was wholly or substantially reliant on the first named visa applicant for financial support to meet his basic needs for food, clothing and shelter. Neither is the Tribunal satisfied on the evidence before it that for a substantial period immediately before its decision the second named visa applicant was wholly or substantially reliant on the first named visa applicant for financial support because he is incapacitated for work due to the total or partial loss of his bodily or mental functions. The Tribunal is therefore not satisfied that the second named visa applicant is dependent on the first named visa applicant. Further, the Tribunal is not satisfied on the evidence before it that the second named visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. For these reasons the Tribunal finds that the second named visa applicant is not the dependent child of the first named visa applicant at the time of decision.

1. The second named visa applicant is therefore not a member of the family unit of the first named visa applicant and hence does not meet the requirements of cl 309.321.

   decision

2. The Tribunal remits for reconsideration the application for a Partner (Provisional) (Class UF) visa made by the first named visa applicant with the direction that he meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

   ·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

3. The Tribunal affirms the decision not to grant the second named visa applicant the Partner (Provisional) (Class UF) 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.

   …