Larney (Migration)

[2020] AATA 224

Larney (Migration) [2020] AATA 224 (7 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samuel Jewel Larney

CASE NUMBER:  1916486

DIBP REFERENCE(S):  BCC2015/1026324

MEMBER:Christine Kannis

DATE:7 February 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

·Public Interest Criterion 4020 for the purposes of cl.820.226 of Schedule 2 to the Regulations.

Statement made on 07 February 2020 at 6:36am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Court remittal – false or misleading information – previous relationships – mother of the applicant’s children – nature of relationship – never married legally or customarily – did not live together – degree of emotional support and companionship – level of commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.226; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
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 Immigration on 2 November 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 April 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 (the Regulations) because the delegate found the applicant did not meet public interest criterion (PIC) 4020.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant sought review of the decision and on 2 November 2017 the Tribunal (differently constituted) conducted a hearing after which it affirmed the decision.

5. The applicant sought review of the decision of the first Tribunal and on 1 August 2018 the Federal Circuit Court dismissed the application for review.

6. The applicant sought further judicial review of the decision and on 21 May 2019 the Federal Court of Australia set aside the decision of the Federal Circuit Court, quashed the decision of the first Tribunal and remitted the matter to the Tribunal to reconsider and determine the matter according to law. 

7. The applicant appeared before the Tribunal on 6 January 2020 to give evidence and present arguments.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The law

9. The issue in this review is whether the applicant meets 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: cl.4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).

10. 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. 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.

11. 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.

12. 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.

13. 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.

    The delegate’s decision

14. The delegate referred to the applicant having answered “No” to a question in his application for a Partner visa when asked whether he had been in any previous relationships with persons other than the sponsor. The delegate decided that the applicant provided false and misleading information because he had a previous relationship with a woman in Ghana. In making this determination the delegate took into account that the applicant had two children born in 2010 and 2013 who were living in Ghana and that both children had the same mother. The delegate also took into account that the applicant’s former employer reported to the Department that he had informed them that he had a wife and son living in Ghana.

15. The delegate accepted that the applicant had not been legally married to the mother of his children but decided that the fact that he had two children with the same person between 2010 and 2013 indicated that his relationship with her was worthy of disclosure. The delegate said he failed to disclose the true composition of his family when applying for a previous visa and his current Partner visa.

    The first Tribunal’s decision

16. The Federal Court decided that the first Tribunal fell into jurisdictional error because it failed to address the question properly before it and instead addressed a different question. The Court said that there was nothing to suggest that the Tribunal ever identified the applicant’s answer of “No” in his application form to be the relevant information which might be false or misleading. The Court said it was satisfied that it was entitled to infer that the information the Tribunal found to have been false or misleading in a material particular was the applicant’s assertion when making his application, that he had never previously been married or in a de facto relationship. That, however, was not an assertion he had made in his application. The incorrect question addressed by the Tribunal was therefore whether the applicant misled the Minister by stating that he had not previously been in a de facto relationship as defined in the Act or the Regulations. The Court noted that the Tribunal’s focus was on whether the applicant had been in a de facto relationship and that that was to be determined not by the social mores of Ghana but as such a relationship is defined in the Act and Regulations.

    Information provided prior to the hearing

17. Prior to making the decision to refuse the visa the Department afforded the applicant an opportunity to comment on the adverse information in regard to the false and misleading information.

18. In response the applicant provided a statutory declaration which included the following information:

    ·He had never been married or in a de facto relationship with the mother of his two children; they never lived together, were never engaged and it was just a casual relationship.

    ·The mother of his children was currently married to another man and his two children were living with his own mother.

    ·After he arrived in Australia his employer asked him if he had any dependent children and he said he had one boy in Ghana. His employer said they could sponsor his child to join him in Australia because he was lonely. The employer asked him if the child’s mother could accompany him because it would be difficult for him to work and take care of the boy. He told his employer he was not married to the child’s mother because she was not ready for marriage. He told his employer he was going to contact her and ask her again, which he did and she declined. His employer then informed the Department that he had a partner and a child.

    ·The second child was conceived when he returned to Ghana in December 2012.

    ·His parents have guardianship of the children because their mother is now married and she does not want them to be involved in her relationship.

19. Following the delegate’s decision the applicant provided statutory declarations made by children’s the mother and her mother. In her statutory declaration the children’s mother said she and the applicant were living in concubinage when the two children were delivered. She said they never married. Her mother provided similar evidence in her statutory declaration. A statutory declaration made by the applicant’s father provided the same information and also said the applicant and the children’s mother had never married legally or customarily.

20. In a written submission dated 20 October 2017 the applicant’s representative provided the following information:

    ·The applicant and the mother of his children only had two sexual encounters which resulted in the birth of their first child. When he returned to Ghana in December 2012 they met and had sex which resulted in the birth of their second child.

    ·Their two sexual encounters did not last for more than three weeks.

    ·They had a brief sexual encounter in 2010 and 2012.

    Evidence at hearing

21. The issue for determination by the Tribunal is whether in answering “No” to the question of whether he had been in any previous relationships with persons other than the sponsor, the applicant gave to the Minister information which was false or misleading in a material particular.

22. As discussed with the applicant at the hearing, the focus of the original decision maker was whether the applicant met PIC 4020 and no formal assessment was undertaken to determine whether the applicant and the sponsor were in a spousal relationship at the time of application. Accordingly, the Tribunal has also refrained from formally considering this issue.

23. The applicant told the Tribunal that when he answered “No” to the question of whether he had been in any previous relationships with persons other than the sponsor, his understanding was that he was saying that he had not been in a de facto or married relationship with another person. He referred to being guided by his migration agent and by a case officer of the Department. He told the Tribunal that he recalled being asked whether he could provide a divorce certificate.

24. When asked to describe his relationship with his children’s mother he said they met in 2009 and saw each other regularly, usually at church once or twice a week. He said they were never in a serious relationship and at no time had they lived together. She was his girlfriend however because of their religious beliefs and African culture they were not in a serious relationship because this was not permitted before marriage. When asked about any joint activities or outings the applicant said they did not do much together and generally saw each other at church. When they commenced a sexual relationship in 2009 they hid it from their families and it did not occur often.

25. The applicant said from 2009 until he left Ghana for Australia in November 2012 he and his children’s mother were in a girlfriend and boyfriend relationship that was not serious. He said he did not have any other relationships because he was committed to his work and also because in Ghana often people do not have relationships unless they intend to marry. He told the Tribunal he did not know whether his children’s mother had other relationships during this period.

26. The applicant told the Tribunal that after he arrived in Australia his employer asked him whether he had a partner in Ghana. He said he had a girlfriend and a son. He said the reason he then asked his children’s mother if she wanted to come to Australia was because he wanted his son to live here and he needed the child’s mother to look after him. In contrast to what appears to be indicated in the statutory declaration he provided to the Department the applicant said he did not ask his children’s mother to come to Australia before he first arrived. He was very clear that this did not happen until his employer made the suggestion.

27. The applicant said when he returned to Ghana in December 2012 he did not tell his children’s mother of his intended return beforehand. When she found out he was in Ghana she visited him and they had sex during which a second child was conceived. He was not at the birth of either child and has not met his second child in person as yet. He met his first child a few days after he was born. He said his children’s mother wanted him to return to Ghana for the birth of the second child because he was responsible for her pregnancy.

28. The Tribunal noted the statutory declarations made by the children’s mother, her mother and the applicant’s father say the applicant and the children’s mother were living in concubinage when the two children were delivered.

29. The Oxford English Dictionary defines concubinage as “the cohabitating of a man and a woman who are not legally married”. The Merriam-Webster Dictionary defines concubinage as the relationship between persons who are cohabiting without the benefit of marriage. The Collins English Dictionary defines the term as cohabitation without a legal marriage.

30. The applicant was clear and consistent in his evidence and said that he and the children’s mother had never lived together. The Tribunal accepts his evidence in this regard.

31. The applicant said when he met the sponsor he told her that he previously had a girlfriend in Ghana and that the relationship was over. The Tribunal noted that following the birth of the second child the children’s mother gave up the custody of the children to the applicant’s parents.   

32. The Tribunal put to the applicant that the birth of the two children over three years may indicate a considerable degree of commitment rather than a relationship that was not serious. He said they were both young and the relationship was not a girlfriend and boyfriend relationship in an Australian context. They did not spend very much time together and did not participate in joint outings such as spending time with friends or having dinner together. They generally saw each other at church and occasionally visited each other at their respective homes. They hid their sexual relationship from their families and the applicant told the Tribunal that on the few occasions they had sex they believed they had sinned.

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

33. The applicant told the Tribunal that at the time of completing his application form he did not understand that he should have disclosed a previous girlfriend and boyfriend relationship. He believed the question was about a de facto or married relationship. He could not provide the reason for this belief other than to say he relied on his migration agent and a Department case officer to complete the form. He said his relationship with his children’s mother was not a serious relationship and this was also part of the reason he believed it was not a relationship that needed to be disclosed.

34. The applicant had to self-evaluate whether or not his “relationship” with the children’s mother was such as to require him to answer “Yes” or “No” to the question that had been asked of him in the application form.  The Tribunal accepts the applicant’s evidence that the nature of his relationship with his children’s mother was not serious and was not one of girlfriend and boyfriend within the meaning given in Australia. The Tribunal accepts that although they saw each other at church on a regular basis and had sex which resulted in two children, they did not live together and did not provide each together with emotional support and companionship. The applicant’s evidence was that he did not see his first child until a few days after the birth, he did not inform his children’s mother when he returned to Ghana in December 2012 and did not return to Ghana for the birth of the second child. He said in the period from 2009 to 2012 they spent very little time together outside of church attendances.

35. Noting the context of the question asked in the application form, that is where previous relationships mean partner relationships, the Tribunal decided that the applicant’s relationship with his children’s mother was not a relationship which should have been disclosed in his application form.  It follows that the Tribunal decided that the applicant did not provide false and misleading information in a material particular in relation to the application for the visa when he ticked “No”.

36. For completeness the Tribunal observes that even if the nature of the girlfriend and boyfriend relationship was a relationship which had a level of commitment and which should have been disclosed, the Tribunal is not satisfied that there was any element of fraud or deception   involved in the applicant giving the answer he did. The Tribunal accepts the applicant’s evidence that his understanding was that a de facto or married relationship needed to be disclosed and not that of a girlfriend and boyfriend in Ghana.  The Tribunal accepts the applicant’s evidence that having regard to the social norms of Ghana, the applicant’s relationship with his children’s mother was not a significant relationship.

37. Therefore, the Tribunal finds there is no evidence before the Tribunal that the visa applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, 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. Therefore, the Tribunal finds the applicant meets cl.4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy cl.4020(1)?

38. Clause 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy cl.4020(1) in the period commencing 3 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: cl.4020(2AA). 

39. There is no evidence before the Tribunal that the applicant or any member of the family unit have been refused a visa in the relevant period because of a failure to satisfy cl.4020(1). Therefore, the applicant meets the requirements of cl.4020(2).

    Has the applicant satisfied the identity requirements?

1. Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The applicant provided his passport and driver’s licence. The Tribunal is satisfied that the applicant satisfies the identity requirements. Therefore, the applicant meets cl.4020(2A).

   Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

2. PIC 4020(2B) requires that neither the visa 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 application 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: cl.4020(2BA).

3. There is no information before the Tribunal to suggest that the applicant or any family unit member has 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 application is granted or refused. Therefore the Tribunal finds that the applicant meets the requirements of cl.4020(2B).

4. For the above reasons, the Tribunal finds the applicant meets the requirements of PIC 4020 for the purposes of cl.820.226.

5. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

   DECISION

6. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

   ·Public Interest Criterion 4020 for the purposes of cl.820.226 of Schedule 2 to the Regulations.

   Christine Kannis
   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. 

   …