Le (Migration)

[2020] AATA 1112

Le (Migration) [2020] AATA 1112 (19 March 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Thi Xuan Nga Le

CASE NUMBER:  1910920

HOME AFFAIRS REFERENCE(S):          BCC 2015/1518198

MEMBER:  Susan Trotter

DATE:  19 March 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on19 March 2020 at 4:12pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Court remittal – false or misleading information in a material particular – sponsor’s relationship history and number of children – compelling reasons for waiver – sponsor’s chronic medical condition – provision of emotional and moral support – fraud or deception by the sponsor – decision under review affirmed

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

CASES
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
He v MIBP [2017] FCAFC 206
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 and Border Protection 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, a 59-year-old Vietnamese national, first arrived in Australia on 7 March 2015, as the holder of a Visitor (Subclass 600) visa. She subsequently applied for the visa on 27 May 2015 on the basis of her relationship with her sponsor. The sponsor is a 57-year-old Permanent Resident of Australia. The parties are validly married for the purposes of the application.

3. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

4. The visa application was refused as the delegate was not satisfied that applicant and sponsor met the definition of spouse or de facto partner under s.5F or s.5CB of the Act, and determined that cl.820.211(2)(a), and therefore also cl.820.211, of Schedule 2 to the Regulations was not met as required. Further, the delegate determined that cl.820.226 was not satisfied as required on the basis that Public Interest Criterion (PIC) 4020(1) was not met, because the delegate determined that the applicant had provided false and misleading information in relation to the application and the delegate was not satisfied that there are compelling circumstances affecting the interests of Australia or compelling or compassionate circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen such that the requirement of PIC 4020(1) could be waived.

5. On 6 December 2016, the Tribunal decided that it had no jurisdiction to review the decision of the delegate as the application for review was not made in accordance with the Act.

6. On 17 January 2017, the applicant sought judicial review of the Tribunal’s decision before the Federal Circuit Court. The Federal Circuit Court dismissed the application on 9 October 2017 and delivered ex tempore reasons for judgment.

7. The applicant subsequently filed an appeal to the Federal Court of Australia, which was upheld on 27 March 2019. The matter was remitted to the Tribunal with the finding that the applicant had properly engaged the Tribunal’s review jurisdiction under s.348 of the Act because the application was properly made under s.347 of the Act for review of a Part 5-reviewable decision covered by s.338 of the Act. As such, the Tribunal has jurisdiction to consider the review application.

8. This matter was listed for hearing on 19 December 2019. On 18 December 2019, the Tribunal adjourned the hearing of this matter following received advice that the applicant’s representative had not seen the hearing invitation forwarded by the Tribunal on 21 November 2019 until two days prior to the hearing and that a new representative would be lodging a change of representative form and submissions. The Tribunal canvassed a convenient new hearing date with the applicant’s new representative and the matter was accordingly relisted for hearing on 4 February 2020.

Case Number 1910920  Page 2 of 19

1. The applicant appeared before the Tribunal on 4 February 2020 to give evidence and present arguments.

2. The Tribunal also received oral evidence from the sponsor, Mr The Thai Tran, the applicant’s daughter, Ms Nhu Quynh Tran and friends of the applicant and the sponsor, Mr Ho Tranh Long and Mr Tam Minh Nguyen.

3. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant’s representative was not present at the hearing. A colleague of the applicant’s representative instead accompanied the applicant at hearing and advised that notwithstanding that the hearing date was rearranged to a date that the applicant’s representative had advised was convenient for him, the applicant’s representative was not available as he was on holidays. The applicant’s representative’s colleague sought further time after the hearing in order for the applicant’s representative to provide written submissions. The Tribunal agreed to provide further time until 11 February 2020 after the hearing for the applicant’s representative to provide written submissions. Submissions were received on 11 and 14 February 2020 and have been taken into account by the Tribunal, including as detailed in these Reasons.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. There is a two stage process for partner visas. The applicant must hold a provisional visa in order to be granted a permanent visa. The grant of the provisional visa enables an applicant to remain in Australia on a temporary basis. The grant of a permanent visa may subsequently be considered, and would generally depend on whether the relationship has continued for a period of at least two years.

7. The Partner (Temporary) (Class UK) visa class contains one visa subclass: Subclass 820 (Partner). The criteria for a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Regulations.

   Relationship requirements

8. Clauses 820.211(2)(a) and 820.221(1) require that at the time that the visa application was made, and at the time of decision, the applicant is the spouse or de facto partner of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen and that the sponsor was not prohibited from being a sponsoring partner under cl.820.211(2B).

9. In the present case, the visa applicant, in her visa application, states that she was first married to the sponsor from June 1984 until December 2001, that she and the sponsor were together the parents of three children, that they divorced in 2001 and remarried on 21 May 2015, such that she was the spouse of the sponsor at the time of the visa application and to continues to be the spouse of the sponsor. The sponsor is an Australian permanent resident.

10. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

Case Number 1910920  Page 3 of 19

1. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3) of the Regulations. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Public Interest Criterion 4020

2. Additionally cl.820.226 of Schedule 2 to the Regulations requires that a visa applicant meets PIC 4020 as set out in Schedule 4 to the Regulations. Broadly speaking, this requires that:

   (a)  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

   (b)  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 three years before the application was made and ending when the application is granted or refused: PIC 4020(2); and

   (c)   the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   (d)  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 application is granted or refused: PIC 4020(2B).

21. 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).

1. PIC 4020 is extracted in the attachment to this decision.

23. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) as follows:

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.

24. 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.

25. 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.

Case Number 1910920  Page 4 of 19

1. The post-hearing submissions received on behalf of the applicant are noted to extend only to PIC 4020(1) and submissions addressed to waiver of the requirement to meet PIC 4020(1) such that the Tribunal first considered the issues relevant to PIC 4020(1) with it following that the following issues are to be determined by the Tribunal:

   Public Interest Criterion 4020(1)

   (a)Has the applicant given, or caused to be given, 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 period of 12 months before the application was made? And, if so,

   (b)Are there 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? And, if so,

   (c)Do those circumstances justify the grant of the visa such that the requirement of PIC 4020(1) may be waived?

   And, if so

   Spouse and sponsor requirements

   (d)Was the visa applicant the spouse of the sponsor at the time of the visa application and at the time of the decision?

   CONSIDERATION

2. The visa application lodged on 27 May 2015 includes the following information:

   (a)the applicant is (at the time of application) a 54-year-old citizen of Vietnam.

   (b)The applicant has three daughters born 1984, 1989 and 1994.

   (c)The sponsor is (at the time of application) a 52-year-old permanent resident of Australia.

   (d)All of the sponsor’s children are the three daughters he has with the applicant born 1984, 1989 and 1994.

   (e)The applicant and sponsor were married in June 1984 with the sponsor returning to Australia in December 2001 after their divorce and remaining separated for 13 years until 2014 when the applicant coincidentally ran in to the sponsor in 2014 while the sponsor was on holidays in Vietnam.

   (f)The sponsor had a relationship between 10 December 2003 and 25 May 2013 with Binh Thi Nguyen.

3. The applicant provided the Department with various documents, including the following:

   (a)a ceremonial marriage certificate for the applicant and sponsor.

   (b)statutory declarations completed by the applicant and sponsor dated 26 May 2015.

Case Number 1910920  Page 5 of 19

(c)two form 888 statutory declarations completed by Tam Minh Nguyen and Phuong Dang Trinh.

(d)a statutory declaration completed by the applicant and sponsor dated 10 June 2016.

(e)a letter from Westpac addressed to the sponsor dated 3 June 2016.

(f)photos of the applicant and sponsor together.

(g)a registered marriage certificate for the applicant and sponsor.

(h)a joint bank account statement addressed to the applicant and sponsor covering the period 3 June 2016 to 1 July 2016.

(i)a copy of a boarding pass for the applicant for a flight from Brisbane to Melbourne on 3 July (no year provided).

(j)copies of boarding passes for the applicant and sponsor for a flight from Melbourne to Brisbane on 7 July 2015.

(k)copies of boarding passes for the applicant and sponsor for a flight from Sydney to Brisbane on 20 June 2016.

(l)two form 888 statutory declarations completed by Lam Duy Nguyen and Tam Minh Nguyen.

(m)a statutory declaration completed by the applicant dated 8 September 2016.

(n)a statutory declaration completed by the sponsor dated 8 September 2016.

(o)a letter from Queen Elizabeth II Jubilee Hospital confirming an outpatient appointment for the sponsor dated 18 August 2016.

(p)a statutory declaration completed by Thi Luc Hoang dated 5 September 2016.

Issue 1 – Has the applicant given, or caused to be given, 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 period of 12 months before the application was made?

29. The applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal discussed with the applicant at hearing the following matters set out in the delegate’s decision which formed the basis of the delegate’s decision that the applicant had provided false and misleading information in relation to the applicant based upon the following:

(a) The applicant stated in the Form47SP (Application for migration to Australia by a partner) dated 18 May 2015:

(i)at question 53, that the sponsor had three children (born 1984, 1989 and 1994).

(ii)At question 63, that the sponsor had never been married to a person other than her.

(iii)At question 64, that the sponsor had never been in a same-sex or opposite-sex de facto relationship with a person other than her.

Case Number 1910920  Page 6 of 19

(iv)          At question 65, that the sponsor had previously been engaged to be married

to Binh Thi Nguyen.

(b) The sponsor stated in the Form40SP (Sponsorship for a partner to migrate to Australia) dated 18 May 2015:

(i)At question 27, that he had previously been married to Binh Thi Nguyen.

(ii)At question 28, that he had never been in a same-sex or opposite-sex de facto relationship with a person other than the applicant.

(c) At an interview conducted on 11 August 2016, the sponsor provided the following information:

(i)He had a relationship with a woman named Thi Luc Hoang between 1991 and 2002.

(ii)He had a child with Thi Luc Hoang.

(iii)The applicant was aware of his previous relationship with Thi Luc Hoang and that they had a child together.

(iv)Thi Luc Hoang lives in Australia and he has had intermittent contact with her since he migrated to Australia.

(v)He has travelled with Thi Luc Hoang in 2008 and 2015.

(d) At an interview conducted on 11 August 2016, the applicant provided the following information:

(i)The sponsor has had a relationship with a woman named Binh. This is the only other relationship that the applicant is aware that the sponsor has had.

(ii)The applicant and sponsor have three children together. The sponsor does not have any other children.

(iii)When the sponsor travelled to Vietnam in 2008 to visit his children, he travelled alone.

(iv)The sponsor has not travelled outside Australia since the visa application was lodged on 27 May 2015 and it was not possible that the sponsor had travelled without her knowledge.

(e) Departmental records indicate that the applicant’s sponsor and Thi Luc Hoang departed Australia on 30 August 2015 and returned on 15 September 2015.

(f) On 12 August 2016, the matters noted in paragraphs (a) to (f) were set out in a letter from the Department to the applicant inviting the applicant to comment on the information.

1. The Tribunal notes that, on 8 September 2016, the applicant responded to the Department’s

   letter, including by providing a statutory declaration of her and a statutory declaration of the sponsor. The applicant’s statutory declaration included that she was not aware of the sponsor’s relationship with Ms Hoang or aware that the sponsor had had a child with Ms Hoang.

Case Number 1910920  Page 7 of 19

1. The Tribunal discussed with the applicant at hearing that if it reached a conclusion that the sponsor had been in a relationship with Ms Hoang, contrary to what he had indicated in the Sponsorship Form, that the Tribunal might conclude that false or misleading information had been provided which was material to the applicant’s visa application, leading to a conclusion that PIC 4020(1) was not satisfied or met.

2. The Tribunal indicated to the applicant that subject to potential application of the waiver provision, the Tribunal might conclude that false or misleading information had been provided in relation to a material particular for the visa such that one of the necessary requirements to be satisfied for the visa is not met. If this is the case, the Tribunal would have to affirm the decision to refuse to grant the visa, regardless of whether the criteria relating to the whether the applicant was the spouse of the sponsor was met or not.

3. The Tribunal asked the applicant if she wished to respond or comment in any way to the matters raised by the Tribunal. The applicant indicated that she had no comment or response to make. Although not requested, the Tribunal therefore suggested an adjournment to the hearing to enable the applicant to consider the concerns the Tribunal had raised. Following the adjournment, the applicant again indicated that there were no matters that she wished to raise. For clarity the Tribunal asked the applicant whether she agreed then that incorrect information had been provided. The applicant responded ‘yes’.

1. The submissions made on behalf of the applicant are directed to wavier of the requirement
   to satisfy PIC 4020(1). Together with the applicant’s decision not to comment on or respond to the Tribunal’s concerns in this regard at hearing, it appears that the applicant does not dispute that PIC 4020(1) is not met. Nonetheless, the Tribunal in conducting a merits review first considered whether on the evidence before it, the applicant had given, or caused to be given, 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 period of 12 months before the application was made.

2. At hearing, in addition to hearing from the sponsor in relation to whether there are 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 grant of the visa (as will be canvassed later in these Reasons), the Tribunal also discussed with the sponsor the matters listed in paragraph 30 of these Reasons. The Tribunal noted that in the sponsorship form, the sponsor had answered ‘no’ to the question as to whether he had ever been in a same-sex or opposite-sex de facto relationship with a person other than the applicant. The Tribunal indicated to the sponsor that the Department had evidence before it that that answer to that question was not correct, and that in fact the sponsor had been in a long-term relationship with a woman called Thi Luc Hoang, that he had had a child together with Thi Luc Hoang and that that information was not disclosed by the sponsor to the Department until the Department raised that information with him. The Tribunal indicated that if it accepted all of that information, it would have to find that there was false information in the sponsorship form.

3. The Tribunal noted that the sponsor had provided a statutory declaration to the Tribunal in response to concerns raised by the Department, and that the applicant had also provided a statutory declaration. The Tribunal noted that the sponsor stated in his statutory declaration that he had known Ms Hoang since 1991 and had a child with her in 1998 but have never looked at her as anything other than a friend. Further, in relation to the concern that the Department raised about him departing Australia, and returning to Australia, on the same flights as Ms Hoang in 2015, he had stated that it was just a coincidence and just by chance that that had happened. However, the Tribunal indicated that based on the evidence before it, the Tribunal would likely not be satisfied that the sponsor had not been in a de facto relationship with Ms Hoang at some time, particularly given that they had a child together,

Case Number 1910920  Page 8 of 19

the long-standing nature of their relationship and the implausibility of him and Ms Hoang by coincidence taking the same flights to and from Vietnam, at a time when it is claimed he was back in a relationship with the visa applicant. The Tribunal indicated that this might mean that the sponsor’s answer in the sponsorship form – that he had never been in a de facto relationship other than with the visa applicant – was wrong and is therefore false information given for the purposes of the visa application in relation to a material particular.

1. The sponsor told the Tribunal that it was his mistake and he admits that. He said he did not fully understand the question and that his previous representative did not fully explain the question. He does not dispute that it was false information but there was a reason that false information was provided, and that is because his previous migration agent had not explained to him fully.

2. The Tribunal also discussed with the sponsor other information he had provided to the Department. The Tribunal noted that at an interview on 11 August 2016, an interview conducted with the assistance of a Vietnamese interpreter, when asked whether he had three children and whether the applicant was the mother of all three children, that it was not until the Department asked him to respond to information that he had another child, that he said he had another child by Ms Hoang. The Tribunal therefore suggested to the sponsor that in addition to the information in the sponsorship form, the sponsor also provided false information to the Department when first asked about how many children he had. The sponsor responded that his understanding, again from the advice of his previous agent, was because he was under the impression that when he answered he said he only had three children from a legal proper marriage whereas his fourth child was from a relationship that was not official and he did not mention the child for that reason. He cannot now recall the exact question that was asked of him but if he had been asked how many children he had he would have only answered three children because his migration agent had told him that it would only be about how many children he had from a formal relationship. However, once the Department asked him about the fourth child he admitted it. When he was as at the interview, he was always prepared to give a true answer so when the Department put to him about the fourth child that was when he realised that the question was how many children he had in total, because initially when asked about his children he was thinking his legal official children within a married relationship, so that is why he answered three.

3. The Tribunal asked the sponsor when, to his knowledge, the applicant became aware of his relationship with Ms Hoang. The sponsor responded that his relationship with Ms Hoang was like an affair more than anything so he was hiding it from his wife. He said that she found out after the interview with the Department. She was quite surprised. When queried as to how his wife, the applicant, found out, he responded that his wife was told by the delegate and he therefore subsequently told her the truth.

4. The sponsor told the Tribunal that his interview with the Department was before the applicant’s interview with the Department. The Tribunal noted that it is recorded in the delegate’s decision that at his interview, he told the Department that his wife at that time already knew about Ms Hoang. The sponsor responded that she did not know because he hid it from her. The Tribunal noted that nonetheless it is recorded that he told the Department at his interview that the applicant was aware of his relationship with Ms Hoang and that he had a child together with her. The sponsor indicated he did not understand how because he is sure that he hid it (Ms Hoang and their child) from her (the applicant). The Tribunal discussed with the sponsor that its concern was that if it was accepted that he told the Department that the applicant knew about his relationship with Ms Hoang and their child together, based on the evidence now before the Tribunal, it would conclude that that information was false information provided to the Department.

Case Number 1910920  Page 9 of 19

1. The Tribunal put certain information to the applicant, adopting the procedure set out in s.359AA of the Act. The Tribunal noted that most of the information was set out in the delegate’s decision that was provided by the applicant to the Tribunal. However, the Tribunal noted that there was one piece of information in addition to the information set out in the delegate’s decision. The Tribunal told the applicant that it had some information that it had to tell her before it asked her some questions. The Tribunal stated that the applicant should listen first to everything that the Tribunal had to say and that it would then give her the opportunity comment on or respond to the information. The Tribunal stated that it was going to put to her some information that would, subject to her comment or response, be the reason or part of the reason to affirm the decision under review to refuse to grant the visa. The Tribunal indicated that the applicant could if she wished seek additional time in which to comment on or respond to the information. The Tribunal stated to the applicant that the information was that at an interview conducted by the Department with the sponsor on 11 August 2016, it was recorded that the sponsor stated that he had three children and that the applicant was the mother of all three children, and that it was not until the Department raised with him that he did have another child that he responded that he did have another child and therefore four children in total. The Tribunal indicated that the reason that the information is relevant is that the Tribunal in telling the Department initially that he had three children and not four, provided the Department with false and misleading information, such that quite separate to any other false or misleading information provided, the Tribunal might find that false or misleading information was provided in a material particular in relation to the application for a visa. The Tribunal indicated that if it reached that conclusion and was not satisfied that that requirement could be waived, it would mean that the Tribunal would have to conclude that a necessary requirement for the visa was not met and would have to affirm the decision under review to refuse to grant the visa. The applicant indicated that she understood the information stated by the Tribunal and the relevance of that information as explained by the Tribunal. When queried as to whether she wished to comment on or respond to the information, she responded ‘no’. Although, as already indicated, the Tribunal had advised the applicant that she could seek additional time in which to comment on or respond to the information, the applicant did not seek additional time. Nonetheless, the Tribunal suggested that the hearing be adjourned in order to give the applicant an opportunity to consider the information further and to comment on or respond to the information, if she wished, after the adjournment. The Tribunal indicated it would give the applicant another opportunity after the adjournment break to let the Tribunal know if there was anything additional she wished the Tribunal to take into account. Additionally, the Tribunal notes that further time was provided after the hearing for post-hearing submissions and generally.

2. Following the adjournment, the applicant told the Tribunal that previously she did not know about the relationship between the sponsor and Ms Hoang but that she now agrees with the evidence that the sponsor has given as to when she found out and her wish is to be allowed to stay here (in Australia) so that she can look after her husband because of his health and to be together with her children and her grandchild.

3. Having had regard to all of the evidence before it, the Tribunal concludes that the following
   false and misleading information has been provided to the Department in relation to the visa application, including as follows:

   (a)that the sponsor had only three children.

   (b)that the sponsor had never been in a same-sex or opposite-sex de facto relationship with a person other than the visa applicant.

Case Number 1910920  Page 10 of 19

(c) that the applicant, at the time of the sponsor’s interview with the Department on 11 August 2016, was aware of the sponsor’s relationship with Ms Hoang and that the sponsor and Ms Hoang had a child together.

1. The Tribunal notes that, as found in Trivedi v MIBP [2014] FCAFC 42, an element of fraud or deception by some person is necessary to attract the operation of the PIC 4020 provision. The Tribunal accepts that there was no fraud or deception on the part of the applicant in relation to the provision of the false or misleading information. The Tribunal accepts that the applicant was not aware of the correct information in relation to the sponsor’s relationship with Ms Hoang and the child he shared with Ms Hoang until after the Departmental interview on 11 August 2016 and, therefore, that in relation to any information she provided prior to that time there was no fraud or deception. However, the Tribunal is not similarly satisfied in relation to the sponsor. The Tribunal does not accept that the sponsor was not aware that he was providing false information, whether or not on the advice of his previous migration agent. The Tribunal does not accept that the sponsor was confused by the questions asked of him, either in the sponsorship forms or at the Department interview, to which he responded incorrectly. The Tribunal concludes that the information provided by the sponsor was purposely false and misleading, both in terms of the nature of his relationship with Ms Hoang and the child he shared with Ms Hoang and that an element of deception was involved in the sponsor providing the information.

2. Further, the Tribunal is satisfied that the information was in relation to a material particular, that is, information relevant to ascertaining whether the applicant and the sponsor were at the time of the visa application and are now in a relationship to the exclusion of all others and the nature of the commitment of the applicant and the sponsor to each other. These are relevant considerations for the purposes of cl.820.211(2) and cl.820.221(1).

3. It follows that the Tribunal finds that PIC 4020(1) is not met.

   Issue 2 – Are there 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 grant of the visa such that the requirement of PIC 4020(1) may be waived?

4. 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 r.1.03 of the Regulations), 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.

5. 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.

6. The Tribunal asked the applicant whether she wished to address the Tribunal in relation to whether there were circumstances that existed such that PIC 4020(1) should be waived. The applicant asked if she told the Tribunal the truth whether the Tribunal would consider waiving the requirement. The Tribunal indicated that as the applicant had made a legal promise to tell the truth it would expect that she would tell the truth and that the Tribunal would take into account everything the applicant said, but could not advise whether it could conclude

Case Number 1910920  Page 11 of 19

whether the requirement could be waived until the Tribunal had heard and considered the relevant evidence. The applicant responded that she did not have anything to say unless the Tribunal had something to ask her and then she would give the Tribunal the true answer.

1. The Tribunal noted that it was a matter for the applicant to make her case to the Tribunal. The Tribunal noted that the evidence before the delegate of potential relevance in this regard was that there was a letter from the Queen Elizabeth II Jubilee Hospital confirming an outpatient appointment for the sponsor dated 18 August 2016 and that the delegate also noted that the sponsor had also stated that he suffered from gout and a rheumatic condition and that there was otherwise no evidence relevantly before the delegate. The Tribunal noted that despite the delegate’s decision being more than three years ago and that despite a seven week adjournment being granted for the hearing, no further documentary evidence had been provided as at the date of the hearing, nor submissions provided, since the delegate’s decision. The Tribunal also noted that when invited to provide oral evidence in relation to this issue, the applicant had not chosen to give oral evidence in relation to the issue. The Tribunal indicated that in addition to its concern, as already raised with the applicant, that PIC 4020(1) was not met, it also held a concern that there was no evidence before the Tribunal such that the Tribunal could be satisfied that there were compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that would justify the grant of the visa.

2. Nonetheless, the Tribunal continued and asked the applicant why she says the visa should be granted. The applicant responded:

   Because I like Australia. Besides my children my husband they are all here and I would like to be here with them.

3. The Tribunal indicated that it might accept all of that including the applicant’s desire to be with her husband and children in Australia, but might not be satisfied that that amounted to 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 grant of the visa. The Tribunal invited the applicant to add anything further. The applicant responded that:

   Apart from that, I think that coming to Australia loving Australia is very stable. I would just love to live here.

4. The Tribunal indicated to the applicant that even if it accepted that the applicant was the spouse of the sponsor at the time of the visa application and the time of decision, based on the evidence before it at that point in time it could not be satisfied that there were 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 grant of the visa, and that if the Tribunal could not be satisfied about that requirement, it would not be able to give a favourable decision no matter what the position in relation to the spouse requirement.

5. The Tribunal then discussed with the applicant the evidence that the sponsor and other witnesses would give to the Tribunal. The applicant responded that their evidence would be that the applicant and the sponsor are in a genuine relationship. The Tribunal indicated that even if that was accepted, the Tribunal still held the concern expressed in relation to the second requirement, that is whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify granting the visa. The Tribunal therefore then called each of the witnesses.

Case Number 1910920  Page 12 of 19

1. The sponsor’s evidence to the Tribunal was that he and his wife are elderly now and have children and grandchildren so they would like to be together so that they can look after their children and grandchildren. He said that they would like to be together as one family so that they can take care of each other in their old age. He told the Tribunal that for the last few years he has been suffering from gout which affects his ability such that he really needs his wife, the applicant, to be with him and look after him.

2. When queried as to who lives with him in his home, the sponsor responded that he lived with his wife and his daughter. When queried as to whether he works, he responded that he works but very limited hours. He said he works in a nail shop doing pedicures and spas and cleaning. He estimated that he works 26 hours per fortnight and that it is at his daughter’s shop.

1. When queried as to whether there was anything else that the Tribunal should take into account, the sponsor responded that he and his wife are elderly people and his children want their parents to be together again in the family. They think their parents are elderly and they do not want them to be separated. They want them to be together.

2. The sponsor told the Tribunal that with the condition he has, his feet get swollen and his mobility is very limited and he would like his wife to be here (in Australia) looking after him as she is of great assistance and he would like her to be here.

3. Ms Tran told the Tribunal that she is one of the three daughters of the applicant and the sponsor, that she and her seven-month-old son are Australian citizens and that her two sisters live in Vietnam. She told the Tribunal that she does not have any other family members in Australia apart from her parents and that they depend upon each other to live. She stated that her father sometimes suffers leg pain so his work is very unstable. She stated that her own health is not very good because the birth of her son was a caesarean and it caused her a lot of physical pain. She stated that she really needs her mother because of her own health situation and her dad’s health situation. She needs her mother so she can go to work and also so that her mother can look after her child. Her husband has not been helping her very much. Her mother has been doing all of the looking after of her and her son. If her mother is allowed to stay in Australia, not only can she look after her and her son but at the same time she can also care for her father. She (Ms Tran) will then be able to go to work and support her family. Both of her parents are also working, small hours because of their old age, but their earnings are just enough to help ends meet. She has a small business and her father is helping out with cleaning the place. Her mother also helps out with that sometimes. When she was about 20, she came to Australia with her father and she is now 35 years of age and was living apart from her mother for over 10 years until her mother arrived in Australia a few years ago. She would like the Tribunal to take into consideration that hopefully her mother will be allowed to remain here and get residency and in the future her other siblings can join them.

4. Mr Long was invited to give evidence to the Tribunal but had no evidence to volunteer. Mr Nguyen gave evidence to the Tribunal that he is a long-standing family friend and can testify as to the genuineness of the relationship between the applicant and the sponsor.

5. At the conclusion of the hearing, Ms Le repeated that her wish is to be allowed to remain here (in Australia) so she can look after her husband and her children.

6. Following the hearing, on 11 February 2020, the Tribunal received further submissions, and supporting documents, on behalf of the applicant.

7. The following documents were provided:

Case Number 1910920  Page 13 of 19

(a)  Joint bank account statements of the applicant and sponsor.

(b)  Numerous photographs of the applicant and sponsor, including together and in company with others.

(c)   Marriage certificate of applicant and sponsor dated 21 May 2015.

(d)  Travel itinerary of applicant and sponsor issued 16 November 2019 .

1. Submissions dated 11 February 2020 included as follows:

   (a)  The applicant and sponsor seek waiver of PIC 4020 so that the applicant can continue to be assessed for eligibility for the visa based on the relationship between her and the sponsor.

   (b)  Although it is understood that the applicant’s knowing or direct involvement is not a requirement in relation to the application of PIC 4020, the context of the information, as well as the provision thereof, ought to be considered carefully in determining the circumstances relevant to waiver and that appropriate weight ought to be afforded to the sponsor’s evidence that the applicant did not know of the sponsor’s relationship with Ms Hoang prior to the interview and only found out on the day of the interview when the sponsor was ‘forced to reveal the truth in light of his own responses at interview’. The applicant should not be penalised or punished so severely for the provision of false information that she had no control over.

   (c)   The applicant and the sponsor rely upon the sponsor’s health condition and medical history of severe gout as compelling reasons to not apply PIC 4020.

   (d)  That further time be allowed until 14 February 2020 in order for further relevant documents to be provided in relation to the sponsor’s health.

2. As requested on behalf of the applicant, on 12 February 2020 the Tribunal responded to the applicant’s request for additional time until 14 February 2020 allowing the further time sought.

3. On 14 February 2020, the Tribunal received further submissions, and supporting documents, on behalf of the applicant.

4. The following documents were provided:

   (a)Letter from Dr Van Chi Truong dated 13 February 2020 as follows (unedited): This is to certify that Mr The Tran is suffering from Chronic Gout condition.

   Symptoms of gout include severe pain, redness and swelling in joints, often the big toe. Attacks can come suddenly and often at night.

   During an acute attack, I believed it would be beneficial for him to get assistances from his wife.

   (b)Statutory declaration of the applicant dated 14 February 2020 as follows (unedited):

   1. I have known about my husbands chronic gout condition around 5 years ago. Back then, episodes of gouts usually happen once every 2 months but recently it has increased to around once per month. Each episode would last around a week.

Case Number 1910920  Page 14 of 19

2.     A typical gout attack would start with severe pain to the hell on one of the legs. The heel would swell and turn red with throbbing pain frequently especially when my husband moves his feet. Whenever that happens, he would mostly lay in bed as it would have been too painful to move. Whenever that happens, I would be there to help him take his medicines, apply cold towel to reduce the swelling. He would need my help whenever he takes a shower and I would cook and bring food to him wherever he was laying down.

3.     Recently, the pain would spread to his knee and then on to the other leg as well. Because of his suffering, he would rarely go out of the house to places without my help, especially to the medical practitioner for check-ups.

4.     The doctor has prescribed him medicines to help ease his pain and help relive the symptoms. He was also recommended that to avoid seafood, red meat and alcohol and have more vegetables in his daily meals. I am responsible to help him take his medicines and also cooking food that is beneficial to his health.

5.     Without my presence, my husband would suffer greatly every time there is a gout attack. There would be no one to help him with the medicines, showering and applying cold towel to reduce his swellings. He would have trouble with shopping for groceries and basic necessities as well as going to the doctor for check-ups.

(c)Photos of the applicant and the sponsor, including the sponsor in a wheelchair and using crutches.

(d)Photos of the sponsor’s gout medications and prescriptions.

(e)Letter from Queen Elizabeth II Jubilee Hospital (the QEII hospital) dated 18 August 2016 confirming an outpatient’s appointment on 21 September 2016.

(f)Medical Certificate dated 21 September 2016 certifying that the sponsor was admitted to and discharged from the QEII hospital on 21 September 2016 in relation to a medical condition.

1. Additionally, the Tribunal was referred to the following.

2. The further written submissions of 14 February 2020, included as follows:

   (a)  It was submitted that the evidence of both the applicant and the sponsor at hearing was that only the applicant as the sponsor’s wife could provide for his need for care and support because of his severe gout, as supported by the documents provided with the sponsor’s doctor attesting to both the condition’s symptoms and severity as well as the assistance the sponsor will need from his wife.

   (b)  That the applicant’s statutory declaration dated 14 February 2020 sets out detailed information as to the sponsor’s suffering and his ‘episodes’ and that the applicant’s detailed and intimate knowledge of the sponsor’s condition is crucial in caring for the sponsor and the level of care is one which only the applicant as the sponsor’s wife can provide.

   (c)   Although acknowledged that carers and care arrangements exist, the care provided (by the applicant) to the sponsor extends beyond physical or medical care and includes emotional and moral support that is of paramount importance given the sponsor’s relatively advanced age. It is submitted that no other person can provide the care and support that the applicant provides to the sponsor, and that to separate the family in such a way is to enforce and inflict undue and unreasonable hardship and detriment upon the sponsor and that any separation as a result of the application of PIC 4020 will not be

Case Number 1910920  Page 15 of 19

temporary but will be extended and long-term with no certainty as to the applicant’s and sponsor’s future together.

(d)  That refusal of the application will shift the circumstances of the sponsor into one of instability and uncertainty, as there is no guarantee that the applicant will be granted a visa in any future applications after any periods of restriction such that the current severe and compelling circumstances should be considered, but that also appropriate weight should be given to the applicant’s and the sponsor’s future in light of the sponsor’s medical condition and the uncertainty that will inevitably follow a refusal.

(e)  The consensus amongst the articles provided with the submissions is that chronic gout requires extensive management, including therapeutic care, pharmacological maintenance and lifestyle adjustment reflecting an intense and significant level of physical care and support that the sponsor currently requires and will continue to need into the long-term future, such that in addition to the emotional and moral support emphasised, the nature and level of care required is such that the applicant must remain in Australia with the sponsor in order to adequately provide for him.

1. The predominant submissions and the relevant person in relation to this matter is the sponsor, the Australian permanent resident husband of the applicant.

2. The Tribunal accepts on the evidence that the sponsor is impacted by a chronic gout condition and that he relies upon the applicant, not just to assist him physically with the impact of this condition upon him, and the necessary medical appointments, but also for emotional and moral support as submitted. The Tribunal accepts as stated in the applicant’s statutory declaration of 14 February 2020 that the sponsor’s has regular episodes of gout, more recently around once per month, lasting a round a week resulting in severe pain and mobility issues, requiring him to mostly lay in bed, and that the applicant assist with him taking his medicines, applying cold towels, assists him showering, and cooks food for him (including healthy food), assists him going to the medical practitioner for check-ups and that without the applicant the sponsor would suffer greatly when he has a gout attack with no-one to help him do all the things the applicant does and that he would have trouble with shopping for groceries and basic necessities as well as going to the doctor for check-ups.

3. The Tribunal further accepts, as submitted, that the separation that may result from refusal of a visa to the applicant may extend to long-term separation with no certainty as to the applicant’s and sponsor’s future together, and with instability and uncertainty for the sponsor. The Tribunal further accepts, consistent with the articles to which the Tribunal has been referred that chronic gout requires extensive management, including therapeutic care, pharmacological maintenance and lifestyle adjustment reflecting an intense and significant level of physical care and support that the sponsor currently requires and will continue to need into the long-term future.

4. The Tribunal has also taken into account the evidence before it that if the visa is refused the
   applicant’s daughter will lose the benefit to her (the applicant’s daughter) of the applicant, her mother, caring for her father (the sponsor), her and her son and assisting with cleaning her business premises and she may again be separated from and living in a different country from her mother and that it is the desire of the whole family for the applicant to be able to remain in Australia.

5. Government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) provide the following policy guidance in relation to factors to consider in relation to a waiver of PIC 4020, including as follows:

Case Number 1910920  Page 16 of 19

Factors for considering a waiver of any or all of PIC 4020(1) and/or (2), would include, but are not limited to, the following four:

·a minor child who is an Australian citizen, permanent resident or eligible New Zealand citizen residing in Australia who would be adversely affected by a decision not to waive. Factors to consider would include:

oexisting family networks already in Australia

owhether the applicant is part of the child’s immediate family.

·whether there are any significant health or welfare issues affecting an Australian citizen, Australian permanent resident or eligible New Zealand citizen. Factors to consider:

oabsence of other carers in Australia

owhether the illness of the Australian citizen, permanent resident or New Zealand citizen is debilitating, permanent and requires ongoing care (that is, it is not a temporary illness, or an illness that does not require continuous care).

·if a decision not to waive would result in the continuing separation of immediate family members, because of an inability of the Australian citizen, permanent resident or eligible New Zealand citizen to reside in the applicant’s country of residence or a third country. Factors to consider include:

othe applicant’s country of residence is a war zone or the sponsor has been found to be a person to whom Australia owes protection.

·the nature and extent of the fraud. Factors to consider include:

othe extent of false or misleading information or documents (for example, multiple falsities or misleading information)

oa past history of attempting fraud against Australia’s migration program.

Note: The interests of the applicant are not relevant when considering whether a waiver should apply. A waiver must apply to compassionate or compelling circumstances that affect the interests

of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.

1. Whilst the Tribunal is not bound by policy, in Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, the Full Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case, the Tribunal is satisfied that the policy is consistent with the legislation and regulations and provides guidance as to the types of matters to be taken into account, albeit not an exhaustive list.

2. The Tribunal has placed considerable weight upon the matters raised on the evidence and submissions, in particular, consistent with the relevant factors suggested by policy, the chronic medical condition impacting the applicant.

3. It is noted in submissions that carers and care arrangements exist and can be provided to the sponsor but that the care provided by the applicant to the sponsor extends beyond physical or medical care and includes emotional and moral support that is of paramount importance given the sponsor’s relatively advanced age. The Tribunal accepts that notwithstanding that other carers and care arrangements exist, that no such care can equate to the care provided by the applicant in the circumstances.

4. The Tribunal has taken into account all of the circumstances raised on the evidence and in submissions, both individually and cumulatively. The Tribunal is not satisfied that the impact upon the applicant’s daughter and her son, as canvassed earlier in these Reasons, amounts to compassionate or compelling circumstances. However, the Tribunal is satisfied that there are compassionate and compelling circumstances affecting the sponsor, an Australian permanent resident, based upon the chronic health condition impacting him and the particular care, above and beyond the care that another person or entity could provide, that the applicant can provide to the sponsor, including by way of emotional and moral support.

Case Number 1910920  Page 17 of 19

1. For completeness, it was not submitted by or on behalf of the applicant that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa. Nor on the evidence before it was the Tribunal satisfied that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa.

   Issue 3 – Do those circumstances justify the grant of the visa such that the requirement of PIC 4020(1) may be waived?

2. The Tribunal acknowledges, as submitted, and as already found by the Tribunal, that there has been no element of fraud or deception on the part of the applicant, and the Tribunal has taken into account the submission that the applicant should not be penalised or punished so severely for the provision of false information over which she had no control. However, as noted in the submissions and also already noted in these Reasons, it is not a requirement that there is an element of fraud or deception by the applicant – the element of fraud of deception can be on the part of another person, such as, relevantly in this case, by the sponsor, the person in relation to whom it is now submitted that consideration should be given regarding compassionate and compelling circumstances impacting him. Having had regard to the fact of the sponsor’s deliberate fraud, as has been found by the Tribunal and as has also been acknowledged in the submissions where it is stated that the ‘Sponsor was forced to reveal the truth’, the Tribunal is not satisfied that the compassionate and compelling circumstances impacting the sponsor justify granting the visa in the circumstances, such that the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived. In reaching this conclusion, the Tribunal observes that although it has not formally considered whether the applicant was at the time of the visa application and is now at the time of decision, the spouse of the sponsor, it has considered whether the discretion should be exercised on the basis that the required spousal relationship existed at the time of the visa application and exists now and is still not able to be satisfied that the compassionate and compelling circumstances which it has found exist justify the granting of the visa.

3. It follows that the applicant does not satisfy PIC 4020 for the purposes of cl.820.226.

4. Given that the Tribunal has found that cl.820.226 is not met, is not necessary for the Tribunal to consider whether the other identified criteria are met.

   Conclusion

5. As one of the necessary criteria for the visa to be granted, cl.820.226, is not met, the Tribunal must affirm the decision under review to refuse to grant the visa. While evidence has also been provided and canvassed in relation to the other criteria for the visa, it is therefore not necessary to make a determination in relation to the other criteria.

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Susan Trotter
   Member

   Case Number 1910920  Page 18 of 19

ATTACHMENT - Extract from 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.

...

Case Number 1910920  Page 19 of 19