Kann (Migration)

Kann (Migration) [2023] AATA 2265 (29 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Roeun Kann
VISA APPLICANTS:  Ms Muoy SENG
Miss Guechteang Chhun
Master Guech Long Chhun
REPRESENTATIVE:  Mr Garry Frederick Howard (MARN: 9804095)
CASE NUMBER:  1934595
HOME AFFAIRS REFERENCE(S):          BCC2019/1622276
MEMBER:Rachel Westaway
DATE:29 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:
·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations
·Public Interest Criterion 4020 for the purposes of cl 309.321 of Schedule 2 to the Regulations for the secondary applicants

Statement made on 29 June 2023 at 12:41am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – false or misleading information in previous visa application – declared marriage in home country with husband as non-accompanying member of family unit – divorced but continuing to operate business together – application prepared by overseas agent while applicant in Australia – applicant’s responsibility to provide correct information – discretion to waive requirements – compassionate or compelling circumstances – validly married – sponsor’s mental health and treatment and vulnerability to relapsing – members of family unit – young adult and teenaged children – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 309.225, 309.321, Schedule 4, criterion 4020(1)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 November 2019 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 1 April 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 found that the applicant had given information that was false or misleading in a material particular as this links to the applicant’s circumstances as a genuine applicant for entry and stay as a student guardian. Therefore, the delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4020, subclause 4020 (1).
The review applicant appeared before the Tribunal on 28 June 2023 at 10:00am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer (Kampuchean/Cambodian) and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The review applicant, Mr Roeun Kann (‘the sponsor’), is an Australian citizen who was born in Cambodia. He is 35 years old.
The primary visa applicant, Ms Muoy Seng (‘the applicant’), is a citizen of Cambodia who is 43 years old.
The secondary applicants, Miss Guechteang Chhun is a citizen of Cambodia and 22 years old. Master Guech Long Chhun is a citizen of Cambodia and is 17 years old.
The applicant and sponsor claim to have first met on 14 July 2018 in Australia. The applicant and sponsor agreed to commit a shared life together to the exclusion of all others on 5 December 2018. The applicant and sponsor married on 30 December 2018 in Victoria, Australia.
The Department application
The visa applicant applied for a Partner (Provisional) (Class UF) (Subclass 309) and a Partner (Migrant) (Class BC) (Subclass 100) on 01 April 2019 on the grounds of being in a partner relationship with the sponsor.
The secondary applicants named also made a valid application for a Partner (Provisional) (Class UF) (Subclass 309) visa and Partner (Migrant) (Class BC) (Subclass 100) visa. The basis for the application made by Guechteang CHHUN 2001 and Guech Long CHHUN are that they are the dependent children and members of the family unit of the visa applicant.
There was evidence before the Minister that the visa applicant had provided, or caused to be provided, a bogus document or false or misleading information in relation to a visa which the visa applicant held in the 12 months prior to this visa application.
Departmental records indicated that the applicant lodged a TU 590 – Student Guardian visa on 26 April 2018 and the application was finalised 05 June 2018. The visa applicant was in Australia holding a TU590 visa.
In the visa applicant’s student guardian visa application, the visa applicant declared her relationship status as married and submitted a marriage certificate to support this claim. The marriage certificate listed CHHUN Sarith as the visa applicant’s spouse. The visa applicant also declared CHHUN Sarith as her spouse and a non-accompanying member of the family unit. In a statement provided to the department by the visa applicant to support claims that she is was a genuine applicant for entry and stay as a student guardian, her circumstances made reference to her husband who will be looking after their business in Cambodia whilst she will be in Australia to be the student guardian for their two children. The applicant also submitted bank statements from ANZ Bank which is a joint account with CHHUN Sarith. Further, to demonstrate her income stream, the applicant provided evidence of a loan contract in June 2015 which shows CHHUN Sarith as the applicant’s husband.
The department found that based on this information, the applicant provided false or misleading information in a visa that she has held in the period of 12 months before the application was made.
On 03 September 2019, the visa applicant was provided an opportunity to comment on the suspected false or misleading information submitted to the Department within 28 days.
On 11 October 2019, the Department received a written response from the applicant.
The visa applicant claimed that she married CHHUN Sarith in 2000 and ran a business for their future and their children. However, in 2015, the applicant and her former spouse got into a serious disagreement until they decided to live separately. She also claimed that whilst they were living separately, they still ran the private loan service together. The visa applicant and her former husband also had an account in ANZ Royal Bank for their children’s education and for the children to run the business after they graduate. As the money used for the loan service has to be withdrawn from the account in ANZ Royal Bank, the applicant needed consent from her former spouse to withdraw the money and enter into a loan contract. The applicant claims that this venture has made it easy for a woman to earn income. As such, she kept this venture going. It is also stated that the applicant and her former spouse’s divorce was only known to relatives as the applicant was afraid that debtors will use the divorce as an excuse to not repay the loan and the corresponding interest.
Regarding the visa applicant’s student guardian visa, the applicant stated that she did not have an intention to hide information about her divorce from her former spouse. The visa applicant stated that she fully trusted an overseas agent, who lodged the student guardian application on her behalf. The overseas agent did not ask the visa applicant in relation to her relationship with her former spouse. The visa applicant also stated that she does not know how to speak in English and the overseas agent just asked for some documents and asked for the applicant’s signature on English documents without explaining the contents to her.
The visa applicant advised that she always provided the documents and her signatures to the overseas agent as she trusted them. Further, the visa applicant stated that she did not have an intention to hide the information in her previous student guardian visa application. The mistake happened because of her ignorance and trusting the overseas agent.
The delegate found that based on the evidence and information before them that the visa applicant had given information that was false or misleading in a material particular as this links to the applicant’s circumstances as a genuine applicant for entry and stay as a student guardian. The delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4020, subclause 4020(1).
The delegate found that the visa applicant did not satisfy clause 309.225 in Schedule 2 of the Regulations.
The delegate also considered whether the secondary applicants met the requirements for this visa subclass as a main applicant and found that they did not. The delegate stated that none of the secondary applicants were able to meet the secondary criterion of clause 309.321 by virtue of being a dependant or a 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.
The Tribunal application
The applicant applied to the Tribunal on 6 December 2019. They provided an application for review form and the notification and decision record from the Department of Home Affairs.
On the 21 June 2023 the applicant’s representative submitted:
·A letter addressing the department’s decision and the reasoning for their decision.
·Statutory declaration, Form 888 from Muyly Lim dated 20 June 2023.
·Statutory declaration, Form 888 from Eak Kheang Ung dated 20 June 2023.
·Statutory declaration, Form 888 from Pen Kien Ly dated 20 June 2023.
·Statutory declaration, Form 888 from Seng Han Cheng dated 20 June 2023.
·Joint bank statement from 10 March 2023 to 10 May 2023.
·Joint bank statement from 10 January 2023 to 10 March 2023.
·Joint bank statement from 10 November 2022 to 10 January 2023.
·Joint bank statement from 9 September 2022 to 10 November 2022.
·Joint bank statement from 8 July 2022 to 9 September 2022.
·Joint bank statement from 10 May 2022 to 8 July 2022.
·Joint bank statement from 10 March 2022 to 10 May 2022.
·Joint bank statement from 10 January 2022 to 10 March 2022.
·Joint bank statement from 10 November 2021 to 10 January 2022.
·Letter from Dr Ernesto Andrada in regard to applicant’s oral substitution therapy dated 28 September 2020.
·Joint tax invoice for kitchenware dated 3 July 2021.
·Joint tax invoice from Gold One Computer dated 7 June 2021.
·Two joint tax invoices for Scorptec dated 30 August 2021 and 3 September 2021 respectively.
·Fiver joint tax invoices for The Good Guys dated 4 January 2021, 23 April 2021, 21 May 2021 and 10 May 2020 respectively.
·Joint sales order payment for The Good Guys dated 21 April 2021.
·Joint tax adjustment notice from The Good Guys dated 23 May 2020.
·KC Tax accounting services invoice in the applicant’s name dated 4 July 2020.
·Joint receipts from JB HI FI and Officeworks dated 23 May 2020 and 27 June 2020 respectively.
·Origin gas bill in review applicant’s name dated 6 April 2023 to 5 June 2023.
·Origin electricity bill in review applicant’s name dated 26 February 2023 to 25 May 2023.
·Origin gas bill in review applicant’s name dated 9 February 2023 to 5 April 2023.
·Origin electricity bill in review applicant’s name dated 26 November 2022 to 25 February 2023.
·Origin gas bill in review applicant’s name dated 8 December 2022 to 8 February 2023.
·Origin electricity bill in review applicant’s name dated 26 August 2022 to 25 November 2022.
·Origin gas bill in review applicant’s name dated 9 August 2022 to 9 October 2022.
·Origin gas bill in review applicant’s name dated 8 June 2022 to 8 August 2022.
·Origin electricity bill in review applicant’s name dated 1 June 2021 to 27 August 2021.
·Origin electricity bill in review applicant’s name dated 26 June 2020 to 28 August 2020.
·Origin gas bill in review applicant’s name dated 7 August 2020 to 6 October 2020.
·Joint RedEnergy gas Bill dated 10 July 2020.
·Joint RedEnergy electricity Bill dated 13 July 2020.
·Joint RedEnergy gas Bill dated 30 April 2020.
·Joint RedEnergy gas Bill dated 9 June 2020.
·Photos together and with family and friends, eating out, on various trips.
·Photos together and with family and friends at their wedding.
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 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 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.
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.
The applicant has provided a submission dated 21 June 2023 which she stated her overseas agent completed the application for the Guardian visa on her behalf and at no time was she asked about her separation and divorce although she accepts that the responsibility is for her to provide the correct information.
The submission stated that she had a money lending business with her husband and continue to own this and that her family knew that she was separated from her husband but had joint accounts and children and did not publicly disclose the separation in fear that her debtors would take advantage of the situation and not repay their debts. As such when her migration agent asked for her marriage certificate she supplied this and did not dispute it.
As such the Tribunal finds that the applicant did provide information that is false or misleading in a material particular because of information was in fact incorrect
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
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.
The Tribunal has considered its discretion to waive he requirements of PIC 4020(1)(a) and (1)(b), namely if there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa.
The following evidence has been taken into consideration regarding compassionate or compelling circumstances that affect the interests of an Australian citizen.
The visa applicant’s husband Mr Kann is an Australian citizen. He came to Australia as a child after living in an abusive relationship under his father who beat him and who allegedly struck him on the head with an axe. His father left him when he was eight years of age and the applicant evidentially migrated to Australia with his mother.
The applicant provided a medical report dated 22 June 2023 outlining his attendance at Mediclinic since 2014 in which it outlines his substance abuse and depression and anxiety disorder and his years of treatment. It states that Mr Kann “exemplifies the other side of the spectrum” stating he has sought help and has “progressed onto a behaviour that is of a positive note” and acknowledges how he has restructured his life due to the support of his wife.
The Tribunal accepts that the applicant and sponsor have been married for four years.
Mr Kann stated at hearing that he has full time employment as a cleaner in a bread making company and has a debt to Centrelink which he is repaying.

He claims he has not taken illicit substances for the last 4-5 years after meeting his wife. He claims he previously used heroin and marijuana. He claims that she has been an enormous support and she has two children who he loves and supports and that he does not want to expose them to his past habits. He believes that he would not be able to maintain this motivation without his wife and her children in Australia.
The applicant provided a submission including photographs and statements made by friends who outlined the genuineness of the relationship and the photographs depicted the applicant, her children and Mr Kann at numerous family outings and their joint bank account and lease agreement demonstrating that they reside at the one address.
Mr Kann stated that given his drug issues his family have very little to do with him and he has no friends or family in Cambodia and to have to move there to be with his wife would be detrimental to his health and ability to remain free from drugs. He stated his is employed in full time work and actively plays with and supports the secondary visa applicants when they are at home. He said he plays Minecraft with them and they go on family outings however as the children have become older this is less frequent.
The Tribunal accepts that Mr Kann is not skilled and would struggle to reside in Cambodia with his wife if the visa is refused and may struggle to obtain employment such that he has in Australia. The Tribunal also accepts that Mr Kann is vulnerable to relapsing into his drug habit.
The submission stated that the risk is high that in Mr Kann situation, namely his lifetime addiction, he could be affected by the separation from his wife and her inability to provide daily emotional support and encouragement.
The Tribunal finds that the reasons put forward for a waiver to PIC 4020 constitute compassionate circumstances that affect an Australian citizen that justify the granting of the visa. For these reasons, the Tribunal is satisfied that the requirements should be waived.
Therefore, the requirements of PIC 4020(1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The applicant has provided the Department with evidence of her identity and that of her children by way of their Cambodian passports and this has not been raised as a concern by the delegate.
Therefore, the applicants meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no evidence before the Tribunal to suggest that the applicant or any family unit member have been refused a visa because of failure to satisfy the relevant identity requirements in PIC4020(2A).
Further, the Tribunal finds that the primary applicant was over the age of 43 at the time the visa was refused. The secondary applicants, Miss Guechteang Chhun is 22 years old and Master Guech Long Chhun is 17 years old.
Therefore PIC 4020(2B) is met.
On the basis of the above, the applicants PIC 4020 for the purposes of cl 309.225.
DECISION
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:
·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations
·Public Interest Criterion 4020 for the purposes of cl 309.321 of Schedule 2 to the Regulations for the secondary applicants
Rachel Westaway
Senior 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.
…

[2023] AATA 2265

29 June 2023

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