Jagdam (Migration) - [2025] ARTA 847

JAGDAM (MIGRATION) [2025] ARTA 847 (4 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Vamshi Krishna Jagdam
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2113363

Tribunal:General Member J Owen
Place:Sydney
Date: 4 April 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
I, General Member J Owen certify that this is the
Tribunal's statement of decision and reasons
Statement made on 04 April 2025 at 12.48pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – applicant supplied ‘information that is false or misleading in a material particular’ to the Department – no compelling reasons that affect the interests of Australia – PIC 4020(1) requirements should be waived – the relationship and the Partner visa application was contrived for migration purposes – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 240, 359, 375
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, 820.221, 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
Wu v MICMSMA [2021] FCCA 1091

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 15 September 2021 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 is a 35-year-old male Indian national. The applicant applied for the visa on 17 July 2019. 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 did not satisfy Public Interest Criteria (PIC) 4020(1).
PIC 4020 (1) requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister or other officer bogus or information that is false and misleading in a material particular in relation to the current application or a visa that the applicant held in the period 12 months before the application was made. The evidence before the delegate was the applicant had provided false or misleading information, or bogus documentation in his Partner (Temporary) (Class UK) visa.
The delegate, as outlined in the decision record, noted on the applicant’s application form he stated that he and the sponsor had committed to a shared life as a married couple to the exclusion of all others on 13 July 2019, and they had married that same day. The applicant lodged his Partner visa application 4 days later.
The delegate noted the Department had received a credible allegation on 14 August 2020 that the sponsor had been coerced into marrying the applicant, and the sponsor had been supplied with drugs and married the applicant immediately after. The allegation was made that photographs were taken of the sponsor’s…

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 Jagdam (Migration)

Details

AGLC: Jagdam (Migration) [2025] ARTA 847
Case: [2025] ARTA 847
Decision Date: 4 April 2025

CaseChat Overview and Summary

The case of Jagdam involved an applicant seeking a Partner (Temporary) (Class UK) visa under subclass 820. The central issue before the Administrative Appeals Tribunal (AAT) was whether the applicant met the Public Interest Criterion 4020 (PIC 4020) required for the visa's grant. The applicant had supplied information that was allegedly false or misleading, and the Tribunal had to determine if there were any compelling reasons to waive these requirements. The Tribunal needed to assess whether the relationship between the applicant and the sponsor was genuine and not contrived for migration purposes.

The legal issues revolved around the interpretation and application of PIC 4020, specifically whether the information provided by the applicant was false or misleading in a material particular, and if there were sufficient compelling reasons to waive the requirements of PIC 4020. The Tribunal had to consider whether the relationship was genuine, as any finding of family violence must be based on a genuine spousal or de facto relationship. The Tribunal also needed to examine the applicant’s claims of being a victim of family violence in light of the relationship being deemed contrived.

The Tribunal concluded that the applicant did not meet the PIC 4020 requirements as there was evidence of the applicant supplying false or misleading information. The relationship between the applicant and the sponsor was found to be contrived, and there was no genuine spousal or de facto relationship, thereby negating any claim of family violence. Furthermore, the Tribunal found no compelling reasons to waive the PIC 4020 requirements. Consequently, the decision to deny the visa was affirmed.

The final orders affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa under subclass 820, based on the failure to meet the PIC 4020 requirements and the contrived nature of the relationship.

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 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. 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

Having concluded that the applicant does not meet PIC 4020, the Tribunal finds no evidence that the applicant meets the criteria for any other subclass within the class of visa sought. The Tribunal does note the applicant made claims to be a victim of family violence on the basis of verbal threats purportedly received from the sponsor and a friend of the sponsor. The Tribunal notes the applicant has not presented any of the documentary evidence required to make a claim of family violence. Furthermore, the Tribunal notes that any finding of family violence must have occurred when the spousal or de facto relationship was in existence. Given the finding the relationship was contrived, and there was never a spousal or de factor relationship between the applicant and the sponsor, there is no claim of family violence to be assessed. DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Date(s) of hearing: 17 March 2025 Representative for the Applicant: Mr Prabhjot Singh Sandhu (MARN: 0963599)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.