GAO (Migration)

[2022] AATA 4859

GAO (Migration) [2022] AATA 4859 (7 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms HONGMEI GAO

CASE NUMBER:  1824864

HOME AFFAIRS REFERENCE(S):          BCC2017/4283922

MEMBER:Mila Foster

DATE:7 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 07 November 2022 at 2:30pm

CATCHWORDS  
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – false or misleading information – previous visitor visa application – marital status – former husband’s name – fake marriage certificate – wavier of requirement – decision under review affirmed

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 362B, 379A 
Migration Regulations 1994 (Cth), Schedule 2, cl 820.226, Schedule 4, PIC 4020

CASES 
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 8 August 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 November 2017 on the basis of her relationship with Zhiqi Liu, her sponsor for the visa. 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 she did not meet Public Interest Criterion 4020 (PIC 4020) having provided false information in relation to a visitor visa application she made on 1 August 2017.[1]

   [1] The applicant provided a copy of the delegate’s decision record with her review application.

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

   consideration of claims and evidence

4. The Tribunal has before it the Department of Home Affairs file relating to the visa application. The Department file includes a copy of the visitor visa application the applicant made on 1 August 2017. No new evidence was submitted on review.

5. 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).

6. 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.

   Background

7. According to information and documents the applicant provided in connection with her partner visa application:

   a.The applicant is a 43-year-old Chinese national.

   b.The sponsor is a 43-year-old Australian permanent resident.

   c.The applicant arrived in Australia on a visitor visa on 17 August 2017.

   d.The applicant met the sponsor on 20 September 2017, they committed to a shared life to the exclusion of all others on 3 October 2017 and married on 4 November 2017.

   e.The applicant had previously been married to Yong Zhang from 4 July 2006 to 16 January 2017. That marriage ended by divorce.

   f.The sponsor had previously been married. His first marriage ended by divorce on 7 March 2017.

8. On 18 June 2018, the applicant was interviewed about her partner visa application by an officer of the Department. At the interview the officer put to the applicant information she had provided about her marital status in connection with her visitor visa application which was inconsistent with information she had provided in connection with her partner visa application. The information is referred to in the following paragraph.  

9. On 19 June 2018 the Department wrote to the applicant to invite her to comment on evidence which it said suggested she had provided, or caused to be provided, false or misleading information in relation to her visitor visa application which could lead to a finding that she did not satisfy PlC 4020(1). The information was said to include that the applicant was married to Gong Zhaosheng. The invitation also noted that the visitor visa application included a marriage certificate for a marriage between herself and Gong Zhaosheng. The invitation stated that the applicant’s marital status and the bona fides of her stated intention to visit Australia was relevant to the consideration of the visitor visa. A copy of the visitor visa application was included with the invitation.

10. The applicant responded to the invitation by way of a statement dated 10 July 2018. She stated that her visitor visa application was lodged by a company named Xinshidian and that all the documents and information she had provided to the company were authentic including the divorce certificate with her ex-husband’s name, Yong Zhang, on it. She said Gong Zhaosheng was not her ex-husband’s name and she felt wronged by the company. She said the documents she had provided for her partner visa application were real.  

11. The delegate’s decision record noted that the applicant’s visitor visa application stated that the applicant was married to Gong Zhaosheng and included a marriage certificate for her marriage to Gong Zhaosheng. The delegate stated that the applicant’s marital status and the bona fides of her stated intention to visit Australia was relevant to the visitor visa criteria in cl 600.211 (of Schedule 2 of the Regulations) which states that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

12. Department movement records indicate that the applicant departed Australia on 13 December 2019 and has not returned since.

    Representative and authorised recipient

13. On review, the applicant appointed a migration agent as her representative and authorised recipient. On 29 October 2021 the migration agent informed the Tribunal that she wanted to ‘cancel agent authorization’ for the applicant as she had been unable to reach the applicant. On 8 November 2021 the Tribunal wrote to the migration agent to confirm that she no longer represented the applicant but that as the applicant’s authorised recipient the Tribunal was legally required to continue to send correspondence in connection to the review to her unless and until the applicant advised otherwise.[2] In response to subsequent correspondence from the Tribunal, the migration agent informed the Tribunal again on 2 August 2022 that she was no longer representing the applicant.

    Invitation to hearing

    [2] Ss 379G(3) of the Act.

14. On 10 October 2022 the Tribunal wrote to the applicant advising that it had considered all the material it had about her application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 4 November 2022. Given Department movement records indicated that the applicant had left Australia, the hearing was scheduled to be conducted by telephone. The invitation stated that the Tribunal would call the mobile number the applicant had provided in connection with the review and advised that the applicant should inform the Tribunal if the number was incorrect or she preferred the Tribunal to call her on another number. The invitation stated that if the applicant did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The hearing invitation was sent by email to the applicant’s authorised recipient, her former representative, as legally required. As the former representative had advised that she had been unable to reach the applicant, the Tribunal also sent an invitation by post to the last residential address the applicant had provided in connection with the review. The Tribunal attempted to send the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing however delivery of those messages failed.

15. On 10 October 2022 the former representative again informed the Tribunal that she was not the applicant’s migration agent. No response to the hearing invitation was received from the applicant herself and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal was unable to contact the applicant on her mobile. Several attempts to call the mobile failed. Each time a recorded message advised that the mobile number had incoming call restrictions.

16. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5) via email to her authorised recipient. The invitation sent by post has not been returned to sender. Two separate attempts to send SMS reminders failed. Several attempts were made to contact the applicant on the day of the scheduled hearing. In these circumstances and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

17. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) (see the attachment to this decision). The definition requires the information to be false or misleading in a material particular in relation to the visa application or a visa that the applicant held in the period of 12 months before the application was made.

18. The requirement in PIC 4020(1) not to provide 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.

19. 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.

20. The information in the visitor visa application the applicant made on 1 August 2017 that she was married to Gong Zhaosheng is inconsistent with the information she provided in her partner visa application that her ex-husband’s name was Yong Zhang and that they had divorced on 16 January 2017. This indicates that the information in the visitor visa application that she was married to Gong Zhaosheng was not true. In her reply to the Department’s invitation, the applicant offered no explanation for how or why the company she had retained to lodge her application would not only fail to provide the correct information about her marital status and her former husband’s name but produce what would seem to be a fake marriage certificate. Had there been no marriage certificate then it may have been possible that the information about her marital status and ex-husband’s name was an unwitting error by the company. The inclusion of a marriage certificate which is consistent with the information in the visitor visa application about the applicant’s marital status and who she was married to indicates that there was an element of fraud or deception by either the applicant and/or the company about the applicant’s marital status. The Tribunal thus finds that the information in the visitor visa application that the applicant was married was false at the time it was given and that it was given either by the applicant or the applicant caused it to be given via the company.

21. Further, the Tribunal finds that the marital status of an applicant is relevant to cl 600.211 which requires the decision-maker to have regard to the whether the applicant has complied substantially with conditions of their last visas, their intention to comply with conditions to which the visitor visa would be subject, and any other relevant matter. Any other relevant matter can include the personal circumstances of the applicant which would encourage their return to their home country. The Tribunal considers the applicant’s marital status relevant to circumstances which would encourage her to return to her home country. The Tribunal thus finds the information that the applicant was married is information that is false in a material particular to the visitor visa.

22. According to the delegate’s decision record the applicant held the visitor visa from 2 August 2017 until 17 November 2017. Hence, the false information was given or caused to be given in relation to a visa the applicant held when she made the partner visa application.

23. On the basis of the above, the Tribunal finds that there is evidence before it that the applicant has given or caused to be given to the Minister information that is false in a material particular in relation to a visa that the applicant held in the period of 12 months before the application was made. The applicant therefore does not meet PIC 4020(1).

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

24. 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.

25. 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.

26. The Tribunal does not have evidence before it about any circumstances which currently affect the interests of Australia, an Australian citizen, and Australian permanent resident or eligible New Zealand citizen. The Tribunal notes that the applicant applied for the visa on the basis of her spouse relationship with Mr Liu, an Australian permanent resident. She also claimed to have a relationship with Mr Liu’s 10-year-old child who she said was an Australian citizen. However, the Tribunal does not have evidence before it about the current nature of the applicant’s relationship with Mr Liu or his daughter or their circumstances. The Tribunal is thus not satisfied that there are compelling circumstances that affect the interests of Australia, or that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen which justify the granting of the visa.

27. Therefore, the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived.

    Conclusion

28. For the above reasons, the applicant does not satisfy PIC 4020 for the purposes of cl 820.226.

    decision

29. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) 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.