Choi (Migration)
[2023] AATA 2110
•2 June 2023
Choi (Migration) [2023] AATA 2110 (2 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Minseo Choi
REPRESENTATIVE: Dr Joseph Tai-Bong Ri
CASE NUMBER: 1927537
HOME AFFAIRS REFERENCE(S): BCC2018/1517950
MEMBER:Cheryl Cartwright
DATE:2 June 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal 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 02 June 2023 at 1:53pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – false or misleading information – validly married – parties’ sharing of financial responsibility and day-to-day household expenses – parties have been married for seven years – genuine and continuing relationship – parties see their relationship as a long-term commitment – sponsor would suffer personal hardship – requirements of PIC 4020(1) should be waived –– decision under review remittedLEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.15, Schedule 2, cl 820.226, Public Interest Criterion 4020CASES
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 42STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 September 2019 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 3 April 2018. 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) because the applicant provided false or misleading information in a material particular in relation to a visa she held in the period of 12 months before this application was made.
The applicant appeared before the Tribunal on 30 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Fi Fan Shi, the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 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.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in 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.
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.
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.
Misleading information
In a student visa application lodged on 19 August 2015, the applicant answered ‘no’ to the question ‘has any applicant ever been removed, deported or excluded from any country (including Australia)’. The applicant had been removed from Australia on 14 June 2014 after her working visa was cancelled for providing false information. The applicant had held the student visa until 4 April 2018 and lodged an application for a partner visa on 3 April 2018.
At the hearing, the Tribunal asked the applicant if she agreed that she had provided false or misleading information in her application for a visa that she held in the 12 months before she applied for a partner visa. The applicant said ‘yes’. The Tribunal notes that the applicant also acknowledged in a statutory declaration dated 9 September 2019 that she had ‘provided false information on my 2015 student visa application’. In a statement dated 17 May 2023, the applicant stated that she was ‘ashamed of my immaturity for being dishonest’.
The Tribunal considers that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth information that is false or misleading in a material particular as defined in PIC 4020(5) in a visa held in the 12 months before her partner visa application was made.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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 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.
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.
For the following reasons, the Tribunal is satisfied that the requirements should be waived.
There is no evidence before the Tribunal that there are compelling circumstances that affect the interests of Australia that would cause the Tribunal to waive the requirements of PIC 4020(1).
The Tribunal has considered whether there are compelling circumstances that would affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen and considers that there is no evidence before it that demonstrates compelling circumstances as such.
The Tribunal has considered whether there are compassionate circumstances that would affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen and considers that there is evidence before it that demonstrates such compassionate circumstances.
The health and wellbeing of the sponsor, the applicant’s husband
In independent but consistent statements to the Tribunal the parties told the hearing that the applicant provides substantial support for the sponsor in helping him to manage his health and wellbeing. The parties met after his divorce from his first wife and loss of contact with his two children from that marriage. The applicant had facilitated the sponsor’s re-engagement with his children.
The applicant told the hearing that, if she was forced to leave Australia the sponsor would return to his previous introversion and possibly lose touch with his children again.
The sponsor told the hearing that, if the applicant was to return to Korea, he would want to join her, but would not be able to leave Australia because of the need to spend time with his children, particularly as the children now know the applicant as his partner which has helped to stabilise their relationship with him.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
The parties were married at Old Treasury Building, East Melbourne, on 16 November 2016. A copy of the marriage certificate is on the Department’s file. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other.
Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.
There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. There is no evidence that the parties have any joint liabilities.
The parties provided copies of bank account statements showing a joint account which demonstrates money transfers and some expenditure on household items. The parties told the hearing that they have separate and individual bank accounts. The applicant told the hearing the parties had established the joint bank account because it was ‘recommended by a lawyer’ and the sponsor stated that it had been established ‘because of the visa application’. As the establishment of the joint bank account was undertaken in order to provide relationship evidence in relation to the application for a partner visa, the Tribunal gives it little weight.
In independent and consistent statements, the parties told the hearing that the sponsor, as the main income-earner, manages the parties’ finances and the parties share responsibility for managing household expenditure. The sponsor’s parents send funds to the parties from China.
The sponsor told the hearing that, in 2022, he purchased the apartment where they had been living since 2016 and if the applicant is allowed to remain in Australia he will add her name to the Title.
The Tribunal gives great weight to the evidence provided at the hearing in regard to the parties’ sharing of financial responsibility and day-to-day household expenses as evidence of a genuine spousal relationship.
Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
The parties provided a number of photographs covering the past four years, in a range of locations and at a range of events with friends and family, including at their wedding.
In a statutory declaration by Li Wei Wang, a friend of the sponsor, dated 19 May 2023, Mr Wang stated that he sees the parties often and shares celebrations with them, such as birthdays, their wedding anniversaries and other special occasions.
In a statutory declaration by Lili Cao, a friend of the parties, dated 19 May 2023, Ms Cao stated that she and her husband, Mr Wang (mentioned above), socialise with the parties approximately once a month and have travelled with them to Geelong to visit the water parks.
The Tribunal gives great weight to the evidence provided at the hearing and to the statutory declarations and is satisfied that the parties represent themselves to other people as being married to each other.
Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.
There is no evidence before the Tribunal that the parties have any children together. As noted above, the sponsor has two children from a previous relationship and the applicant has helped him to re-establish and continue contact with his children.
In independent and consistent statements the parties told the hearing that the applicant undertakes all housework and the sponsor does all the cooking, creating a large amount of work for the applicant to clean the kitchen.
The Tribunal gives great weight to the evidence provided to the hearing and is satisfied that the nature of the household is one of a couple in a genuine spousal relationship.
The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.
The Tribunal notes the evidence provided that the parties have lived together since 2016 and that they have been married for seven years and gives great weight to this length of time.
As mentioned above, the applicant has provided emotional support to the sponsor and encouraged his re-engagement with his children from his former relationship.
The sponsor told the hearing that the applicant has helped him to control his emotions and his aggression and he has learnt to communicate better. He stated that he would be prepared to go to Korea with her, but would be torn because, after renewing his relationship with his children he does not want to jeopardise this.
The sponsor stated that his children have learnt that it is costly to mislead as they have seen how the actions of the applicant in providing misleading information in a visa application has led to the delay in the establishment of stability in the parties’ relationship. The applicant told the hearing that she had informed the sponsor’s children that she had provided misleading information on a visa application and they were concerned that she might have to return to Korea.
In his statutory declaration mentioned above, Mr Wang stated that the parties demonstrate care and support for each other.
In her statutory declaration mentioned above, Ms Cao stated that the parties have been ‘tender and loving’ towards each other’s families.
The Tribunal gives great weight to the evidence provided with regard to the degree of companionship and emotional support that the persons draw from each other. The Tribunal also gives great weight to the length of time the parties have lived together and is satisfied that the parties see their relationship as a long-term commitment.
Having considered the evidence above the Tribunal is satisfied that the parties are in a genuine spousal relationship and that the sponsor would suffer personal hardship if the applicant was required to return to Korea.
Therefore the requirements of PIC 4020(1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Tribunal has reviewed the applicant’s passport and there is no evidence that the applicant is not Minseo Choi. Therefore, the Tribunal is satisfied as to her identity and finds that PIC4020(2A) is met.
Has a visa previously been refused on the basis of a failure to satisfy PIC4020(2A)?
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).
There is no evidence that the applicant or any member of her family unit has been refused a visa during the period starting 10 years before the application was made and ending when the visa was refused.
Conclusion
The applicant provided a false or misleading document in the application for a student visa application lodged on 19 August 2015. She had replied ‘no’ to the question ‘has any applicant ever been removed, deported or excluded from any country (including Australia)’. The applicant had been removed from Australia on 14 June 2014 after her working visa was cancelled. The applicant had held the student visa until 4 April 2018 and lodged an application for a partner visa on 3 April 2018. Therefore, the applicant does not satisfy PIC 4020 for the purposes of PIC 4020(1).
With regard to PIC 4020(4), evidence was provided to the Tribunal hearing, that the applicant provides substantial support for the sponsor in helping him to manage his health and wellbeing. The applicant had facilitated the sponsor’s re-engagement with his children and their separation if she was required to return to Korea could jeopardise this ongoing relationship and the sponsor’s emotional wellbeing. The Tribunal is of the view that this is a compassionate reason to waive the requirements of PIC 4020(1).
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 820.226.
DECISION
The Tribunal 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
Cheryl Cartwright
MemberATTACHMENT
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.
…
Key Legal Topics
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Immigration
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Statutory Interpretation
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Judicial Review
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Procedural Fairness
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