Da Silva (Migration)

[2021] AATA 1586

Da Silva (Migration) [2021] AATA 1586 (7 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeferson Souza Da Silva

CASE NUMBER:  1906703

DIBP REFERENCE(S):  BCC2014/3327463

MEMBER:Roger Maguire

DATE:7 April 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 07 April 2021 at 4:04pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – false or misleading information – department not notified of relationship breakdown in 2017 – documents uploaded to demonstrate an ongoing relationship with the sponsor and continued residence during the period after applicant had vacated the premise – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 376

Migration Regulations 1994, Schedule 2, cl 801.226, PIC 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 19 March 2019 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 applied for the visa on 4 December 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.801.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet Public Interest Criterion (PIC) 4020, as he had provided or caused to be provided false or misleading information to the Department in relation to his visa application.

3. The applicant appeared before the Tribunal on 21 December 2020 to give evidence and present arguments. The hearing took place with the assistance of a Portuguese/ English interpreter. The Tribunal also received oral evidence from Leonardo Mereilles.

4. The applicant was represented in relation to the review by his registered migration agent, Ms Fernandes MARN 1463596.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (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 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).

7. 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 a material particular?

8. 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.

9. 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.

10. 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.

11. Evidence before the Tribunal shows that the relationship broke down as early as January 2017, and that the applicant ceased cohabitation with his sponsor no later than September 2017. The applicant did not notify the Department of this change in circumstances as he was required to do.

12. The applicant’s migration agent did not dispute the validity of s.376 certificates issued in relation to this matter.

13. The applicant confirmed that everything that he had communicated to the Department and the Tribunal in the course of this application was true, correct and current as at the date of the hearing. There was nothing he wished to alter, clarify or correct in any way.

14. The applicant was asked the reason he started having his pay deposited to the sponsor’s bank account on 3 February 2016. The applicant was asked what contribution he made towards the purchase of the house they lived in together. He contributed all of his pay of about $1,100 or $1,200 per week to the joint account for mortgage and household expenses.

15. The applicant has stated that he left the home in September 2017. When asked to be more specific as to the precise date that he departed the residence, he said that he left around 17 September 2017. He had been trying to “work things out” as things had not been going too well.

16. He said things started going bad in the relationship when he had an issue with her brother as soon as they bought the house in 2016. They took up residence on 1 January 2016. The brother did not want to help with household chores and cleaning. The applicant had a problem with the brother while they lived at the previous residence prior to 1 January 2016 and agreed that he already had a poor relationship with the brother prior to that time.

17. Things started going bad with the sponsor after he asked her brother to move out around October 2016, and the relationship deteriorated from that time on. Her parents started getting involved and she started to change her attitude to him. The relationship with her brother caused arguments with the sponsor, and she was taking her brother’s side. The brother moved out in October 2016 and remained away for about one year.

18. The applicant was also asked at what time was he first asked to vacate and said around 12 September 2017. The brother moved back in within days of the applicant’s departure around 17 September 2017. The applicant never stayed at the house again. He had no choice about vacating as she was packing his things. The applicant said that he had no anticipation of being asked to leave. He called a friend and asked to stay at his house.

19. The applicant agreed that the relationship had been going through a process of deterioration for nearly one year.

20. The applicant was asked what prompted him to start having his pay deposited to his own account on 19 July 2017. He said that a female friend had told him to stop paying towards the house, because it was not his house. He said that he believed the sponsor had spoken to the friend. The applicant said that they were still planning a future together in July 2017. The friend said she was going to take the house from him and to stop giving her money. This was prior to his changing his pay arrangements. The applicant said that the sponsor did not react at all when this happened.

21. The applicant said that he received $31,000 from the sponsor following the separation. She wanted this to be a settlement of their financial relationship. The applicant said that he could not remember exactly when he got this. This was done via a bank transfer into his personal account. The sponsor had wanted him to sign a statutory declaration in relation to the payment. The applicant said that the sponsor transferred the sum into his account, and he only got $31,000. The applicant said that the sponsor came up with a figure of $35,000 in about October 2017. The sponsor changed the password on their joint account around the same time that he changed his pay arrangements, and she probably changed the password in response to what he had done with his pay arrangements.

22. The applicant was shown bank statements he had provided and which showed three transfers of sums of $10,000 and one of $5,000 on 17 and 18 January 2018 transferred from the sponsor’s account to a joint account, which was in respect of his interest in the house. The applicant was asked when the sponsor presented him with her blank statutory declaration, and the agreement to pay him $35,000, and said that it was between the time that he moved out and the brother moved in, around late September or early October 2017.

23. The sponsor never spoke to him about moving back into the house, and he never stayed there after he moved out on about 17 September 2017, and they did socialise at which times they discussed finalising financial arrangements between them. The brother moved in shortly after he moved out. The applicant said he continued to try to repair the relationship.

24. The applicant was asked if he knew a woman by the name of Trish Kenny, and said that she was a friend of his from work, and she did not have any reason to say untrue things about him. He recalled seeing her at a work Christmas party in December 2017. The applicant said that he had a lot of conversations with her, and he talked honestly and openly to her. She was present when he proposed to the sponsor. The applicant did not recall saying anything to Ms Kenny at the Christmas party in December 2017. He agreed that if she said that she had a conversation with him at the Christmas party in December 2017, it would probably be true.

25. The applicant did not recall breaking down and telling her that the relationship had ended. He said that Ms Kenny would be lying if she said that, as he was trying to work things out then and during 2018. When asked if he recalled telling Ms Kenny that the sponsor only gave him a “minimal amount of money” on separation, the applicant said that Ms Kenny was telling the truth. Ms Kenny had no reason to tell the truth about one thing and lie about another.

26. When asked if he had a godchild, born in March 2014, the applicant said yes, and that he last saw her about five weeks ago. He said that he had not really had a big involvement with her in the last 12 months and has only been there two or three times. He agreed that it was only during the first three or four years of her life that he had any significant involvement with her life.

27. The Tribunal informed the applicant that it had received information which, if relied upon, could be all or part of the reason for affirming the decision under review, and asked if he understood this statement, to which he replied “yes”. The Tribunal told the applicant that the information was important as it suggested that he was not being honest with the Tribunal in relation to his relationship.

28. The Tribunal put to the applicant information that the applicant and sponsor continued to live in the same house after the relationship broke down around January 2017 even though the relationship was over, and that he and the sponsor lived separate lives, and that he wanted to continue living there together until his visa was approved. The applicant said that he did say that, because he was upset. The applicant said that there was no part of this information which was not true.

29. The Tribunal put to the applicant that he told the sponsor not to tell anyone, and that the relationship was not over until he got his visa, and to tell her parents not to contact Immigration. The applicant said that he never said that.

30. The Tribunal also put to the applicant that there was also information that he had on one occasion held a glass against the sponsor’s brother’s face in a threatening manner. The applicant denied that this had happened.

31. The Tribunal put to the applicant that following his departure from the premises, the applicant continued to get his mail delivered there and continued transferring funds to the joint account as part of the deception. The applicant said it was true that his correspondence continued to be delivered to that address, but that after 2018 he no longer transferred funds to the joint account.

32. The Tribunal also received information that the applicant was repeatedly boasting that his migration agent had advised him to “play the mental health card”, and that he had been falsifying information. The applicant said that his agent never mentioned anything like that, and he denied having said it.

33. The Tribunal also received information that the applicant married his first wife in order to stay in the country. The applicant said that the statement was true, and that they were in a relationship for nine years.

34. The applicant said that his departure would have a lot of impact on his godchild, but he has not taken her anywhere since 2018.

35. The witness Mr Leonardo Meirelles refreshed his memory from the statement he had provided and told the Tribunal that he had raised concerns about the sponsor’s brother, and his awareness was that the applicant moved out around September 2017. Around October 2017 the sponsor rang the witness and asked him to speak to the applicant and convey an offer of money to cover his interest in the house. She wanted to get the house issue over and repay him the amount he had contributed. She was asking him to help achieve a property settlement. She did not say anything positive about the relationship.

36. The applicant said that he is a good man and has never tried to mislead the Department and has never been in trouble with the law.

37. On 18 December 2017, 2 January 2018, 23 January 2018, and 20 March 2018, the applicant attached a series of documents to his ImmiAccount. One of these was evidence of joint home and contents insurance for the property which he and his sponsor had jointly purchased and resided in from the time of purchase until the time of separation. This document was dated 15 December 2017 and was jointly addressed to the applicant and the sponsor at the residential address. There was also evidence of a car insurance payment receipt and certificate of currency for his car dated 22 January 2018 and addressed to the applicant at that same residential address. There was also evidence of a car insurance policy schedule in respect of the sponsor’s car covering the period 8 March 2018 to 8 March 2019 addressed to the sponsor at the same address.

38. The applicant said that the sponsor had submitted the documents, not him. He denied having submitted the documents. He denied having influenced her in any way to upload those documents. The applicant said that maybe she was thinking that they could get back together. However, he agreed that she has never been invited to return to the house for any reason since he left. The last time he spoke to the sponsor was in 2018.

39. The applicant said that he would have no objection to the Tribunal calling her to confirm what he had said.

40. Based on the applicant’s evidence, the Tribunal is satisfied that the relationship ended on or about 17 September 2017. The Tribunal is satisfied that the foregoing documents were uploaded for the purpose of demonstration of an ongoing relationship with the sponsor and continued residence during the period after the applicant had vacated the premises. As such, they contained information which was false or misleading in a material particular, and the applicant does not satisfy PIC 4020(1).

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

41. 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.

42. 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.

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

44. There is not sufficient evidence before the Tribunal to warrant a waiver of PIC 4020 pursuant to PIC 4020(4).

45. Therefore the requirements of PIC 4020(1) should not be waived.

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

    DECISION

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

    Roger Maguire
    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.

    …