Han (Migration) - [2025] ARTA 562

HAN (MIGRATION) [2025] ARTA 562 (12 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Jianan Han
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2115376

Tribunal:General Member S Durvasula
Place:Sydney
Date: 12 March 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 12 March 2025 at 5:12pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – applicant did not satisfy Public Interest Criteria (PIC) 4020 – birth certificate for her daughter was bogus document – relationship had ceased – sponsor is not the father of the applicant’s child – no compelling reasons that justify exercising the waiver and granting the visa – PIC 4020(1) requirements should be waived – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, r 1.03, Schedule 2, cl 820.226
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 for Home Affairs on 20 October 2021 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 17 June 2015. 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 delegate found the applicant did not meet Public Interest Criterion 4020 (PIC 4020).
The applicant appeared before the Tribunal on 7 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The 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 820.226 for the grant of the visa.
In this case, PIC 4040(1) is relevant. Broadly speaking, this requires 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.
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)…

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 Han (Migration)

Details

AGLC: Han (Migration) [2025] ARTA 562
Case: [2025] ARTA 562
Decision Date: 12 March 2025

CaseChat Overview and Summary

The applicant, who was born in China, applied for a Partner (Temporary) (Class UK) visa on the basis of her relationship with an Australian citizen. The Department of Home Affairs found that the birth certificate the applicant provided, which listed her former sponsor as the father of her child, was a bogus document. The delegate found the applicant did not meet the Public Interest Criteria 4020 and did not meet cl 820.226 of the Schedule 2. The Tribunal was required to consider whether the decision not to grant the visa should be affirmed.

The Tribunal considered whether the Minister's certificate, which certified that the disclosure of certain information would be contrary to the public interest, was valid. The Tribunal found the certificate was valid and exercised its discretion to disclose part of the information to the applicant without contravening the public interest reasons. The Tribunal also considered whether the applicant satisfied PIC 4020, which requires 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. The Tribunal found the applicant had provided a bogus document to the Department, being the birth certificate for her daughter, and therefore did not satisfy PIC 4020.

The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa. The Tribunal found the applicant did not meet PIC 4020 for the purposes of cl 820.226. The Tribunal was satisfied that the decision under review should be affirmed. The Tribunal did not find any compelling reasons that justify exercising the waiver and granting the visa. The Tribunal was satisfied that the Minister's certificate was valid and that the disclosure of certain information would be contrary to the public interest. The Tribunal exercised its discretion to disclose part of the information to the applicant without contravening the public interest reasons. The Tribunal found the applicant had provided a bogus document to the Department, being the birth certificate for her daughter, and therefore did not satisfy PIC 4020. The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal has not disclosed the remainder of the information in the certificate. The Tribunal is satisfied it would be contrary to the public interest to do so, as it contains information related to the personal details of another applicant, and it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would prejudice the effectiveness of those methods.Background and delegate’s decision On 17 June 2015, the applicant applied for a Subclass 820/Subclass 801 visa on the basis that she was in a partner relationship with an Australian citizen, Mr David Jusong Ahn (the former sponsor). The parties claim to have met on 16 November 2024. On 23 May 2015, the applicant and the former sponsor married in Australia and a marriage certificate is on file. On 20 May 2017, the applicant gave birth to a daughter in Australia. On 18 January 2018, the applicant provided a copy of her daughter’s birth certificate to the Department. The birth certificate lists the applicant as the mother and the former sponsor as the father. The birth was registered on 8 August 2017. On 29 April 2019, the former sponsor wrote to the Department and withdrew his sponsorship of the applicant’s visa application. On 12 July 2021, the Department wrote to the applicant inviting her to comment on adverse information. The information was that there was evidence to suggest that the applicant has provided a bogus document to the Department. The relevant document was a birth certificate she had provided, listing the former sponsor as the biological father of her daughter. The Department had received adverse information that the former sponsor was not the biological father of her daughter. This information had been considered in an Australian citizenship application for her daughter and her citizenship had been cancelled under s 37(6) of the Australian Citizenship Act 2007 (the Citizenship Act) on 11 November 2020. The applicant responded to the Department’s procedural fairness letter on 26 July 2021. She claimed that her daughter was the biological child of herself and the former sponsor. At the time of registering her birth, she and the former sponsor were still in a relationship and he believed he was the father of the child. He helped her to obtain Medicare benefits. He stopped providing financial support for the child after the relationship broke down. He now has a new girlfriend. She sent her daughter to China and she is being looked after by her parents. She is unable to arrange a DNA test for the child or provide other evidence that the former sponsor is the father of the child. Departmental movement records show that the applicant’s daughter departed Australia on 6 August 2019 and she has not since returned. The delegate found the applicant had provided a bogus document to the Department, being the birth certificate for her daughter. The delegate also found there were no compelling circumstances affecting the interests of Australia or compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, as her daughter was not an Australian citizen. Therefore, the delegate found the applicant did not meet PIC 4020 and did not meet cl 820.226 of the Schedule 2.

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 820.226 for the grant of the visa. In this case, PIC 4040(1) is relevant. Broadly speaking, this requires 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. 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.Non-disclosure certificate A preliminary issue for the Tribunal is a certificate issued by the Minister under s 376 of the Act. Under s 376 the Tribunal has a discretion to disclose information contained in the subject documents. In this case, the certificate certifies that the disclosure of the information would be contrary to the public interest, because it contains information related to the personal details of another applicant and it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would prejudice the effectiveness of those methods. There are 2 issues for the Tribunal. The first is whether the certificate is a valid certificate. If the Tribunal decides the certificate is valid, the second issue is the nature of the information and if the information should be disclosed to the applicant. At the hearing, the Tribunal advised the applicant of the existence of the certificate and its preliminary view that the certificate was valid. The Tribunal explained the gist of the information contained in the certificate to the applicant. The Tribunal invited the applicant to comment on the certificate’s validity and whether the Tribunal should exercise its discretion to disclose the information. The applicant did not comment on the validity of the certificate, but separately responded to the gist of the information in the certificate (discussed below). The Tribunal is satisfied that the s 376 certificate, which was signed by an authorised delegate of the Minister, is valid. It provides a valid reason for maintaining confidentiality. The Tribunal has exercised its discretion to disclose part of the information covered by the certificate under s 359A of the Act (see below). The Tribunal was satisfied that this information could be disclosed to the applicant without contravening the public interest reasons cited above. The Tribunal has not disclosed the remainder of the information in the certificate. The Tribunal is satisfied it would be contrary to the public interest to do so, as it contains information related to the personal details of another applicant, and it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would prejudice the effectiveness of those methods.Background and delegate’s decision

Decision

Reasons for decision

On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 820.226. The Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Date of hearing: 7 March 2025Representative for the Applicant: Mr Rongwu Liu (MARN: 0321108)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

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