CHEN (Migration)

This matter concerned a Partner (Provisional) visa (Subclass 309) application made by the first named visa applicant, a Chinese national, and the second named visa applicant, who claimed to be the first applicant's son. The review applicant was the first applicant's Australian national partner. The core dispute revolved around whether the first applicant had provided a bogus document or false or misleading information in relation to his marital status in China, and whether the second applicant qualified as a member of the family unit.

The Tribunal was required to determine if the first named visa applicant satisfied Particulars of Identity Criterion (PIC) 4020, specifically concerning the provision of bogus documents or false or misleading information. Additionally, the Tribunal had to assess whether the second named visa applicant was a member of the family unit of the first named visa applicant, as defined by migration regulations, particularly as a "dependent child." The waiver provisions for PIC 4020, based on compelling or compassionate circumstances, were also a relevant consideration.

The Tribunal found that the first named visa applicant satisfied PIC 4020, as there was no evidence of him having been refused a visa due to a failure to meet PIC 4020(2A) in the relevant period. Regarding the second named visa applicant, while a birth certificate confirmed his parentage by the first applicant, a previous student visa application by the second applicant listed a different father. The Tribunal accepted the explanation that this discrepancy was either an innocent mistake or false information, and given the lack of credible contradictory evidence, concluded that the first applicant was indeed the father. However, the Tribunal noted that the second applicant did not meet the definition of a "dependent child" as he had turned 18 and there was no evidence of him being dependent on the first applicant or incapacitated for work.

Consequently, the Tribunal remitted the decision regarding the second named visa applicant's eligibility as a member of the family unit. The Tribunal concluded that the first named visa applicant satisfied PIC 4020 for the purposes of clause 309.225.