Gonwokay (Migration) - [2025] ARTA 342

GONWOKAY (MIGRATION) [2025] ARTA 342 (13 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Angeline Kalee Gonwokay
Visa Applicants:  Mr Josiah M Whapoe
Miss Johnet Whapoe
Master Abendnego Whapoe
Master Josiah Joel Whapoe
Master Abraham Whapoe
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2216580

Tribunal:Peter Emmerton
Place:Adelaide
Date: 13 March 2025

Decision:The Tribunal affirms the decisions not to grant the applicants Partner (Provisional) (Class UF) visas.

Statement made on 13 March 2025 at 4:05pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – applicant provided false or bogus documentation – applicant does not meet PIC 4020 – provided false information and evidence to claim Johnet Whapoe was the biological child of the applicant – requirements of PIC 4020(1) should not be waived – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 309.225
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 25 October 2022 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 4 February 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they did not meet PIC 4020 because the applicant has knowingly provided false and misleading information to circumvent the migration regulations.
The review applicant appeared before the Tribunal on 13 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence, via Teams video, from the primary applicant Mr Josiah M Whapoe.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 309.225 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gonwokay (Migration)

Details

AGLC: Gonwokay (Migration) [2025] ARTA 342
Case: [2025] ARTA 342
Decision Date: 13 March 2025

CaseChat Overview and Summary

In the matter of Gonwokay (Migration) [2025] AATA 135, the Tribunal was called upon to review a decision to refuse to grant Partner (Provisional) (Class UF) visas to the applicants, who sought to enter Australia on the basis of their relationship with the primary applicant. The refusal was predicated on the applicants' failure to meet the Public Interest Criterion 4020, specifically the requirement that there is no evidence that the applicants had provided false or misleading information or bogus documents in relation to their visa application. The crux of the dispute was whether the applicants had indeed provided false information and documentation, and if so, whether the requirements of PIC 4020 should be waived.

The legal issues before the Tribunal centred on the interpretation and application of PIC 4020, particularly subsections (1) and (2). The Tribunal had to determine whether the applicants had provided false or misleading information or bogus documents, and if the circumstances warranted a waiver of the PIC 4020 requirements. The Tribunal also considered the definition of "bogus document" under the Migration Act and the implications of providing false information as outlined in PIC 4020(5).

The Tribunal found that the applicants had indeed provided false information and documentation, specifically that they claimed Johnet Whapoe was the biological child of the primary applicant, which was not true. This constituted a breach of PIC 4020(1). The Tribunal further noted that the requirements of PIC 4020(1) and (2) could be waived if there were compelling or compassionate circumstances, but this waiver did not extend to the identity requirements in PIC 4020(2A) and (2B). The Tribunal concluded that the compelling or compassionate circumstances did not justify waiving the requirements of PIC 4020. The secondary applicants, being members of the family unit, also did not meet the criteria to be granted visas as dependants or members of the family unit.

Consequently, the Tribunal affirmed the decision to refuse to grant the applicants Partner (Provisional) (Class UF) visas. The Tribunal found that the applicants had not satisfied the Public Interest Criterion 4020, and thus, the decision under review was upheld. The Tribunal's decision was grounded in the evidence presented and the legal framework provided by the Migration Regulations and the Migration Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.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 309.225 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 circumstances 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? 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.

Decision

Reasons for decision

The secondary applicants Abraham Whapoe, Josiah Joel Whapoe, Abendnego Whapoe and Johnet Whapoe are not able to meet the secondary criterion of clause 309.321 by virtue of being a dependant or member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Partner (Provisional) (Class UF) (Subclass 309) visa.DECISION The Tribunal affirms the decisions not to grant the applicants Partner (Provisional) (Class UF) visas.Date of hearing: 13 March 2025Representative for the Applicant: Ms Vaishalee Karanjgaokar (MARN: 1574036)ATTACHMENTMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the ART during the review of a reviewable migration 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 1958s 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.…

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.