Lui (Migration)

[2024] AATA 2784

Lui (Migration) [2024] AATA 2784 (18 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chun Mo Patrick Lui

REPRESENTATIVE:  Mr Christopher Levingston (MARN: 9301107)

CASE NUMBER:  1924993

HOME AFFAIRS REFERENCE(S):          BCC2018/2002695

MEMBER:Kira Raif

DATE:18 July 2024

PLACE OF DECISION:  Sydney

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 18 July 2024 at 3:24pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – misleading information in a previous visa application – employment in a regional area – different identity previously declared – compassionate or compelling circumstances – Australian citizen child of the relationship – partner’s health condition – decision under review remitted   

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 820.226; Schedule 4, Public Interest Criterion 4020; rr 1.03, 1.12

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274
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 Home Affairs on 28 August 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of China, born in January 1992. He applied for the visa on 8 May 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 820.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant met Public Interest Criterion (PIC) 4020. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 820.226 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

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

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

5. 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).

6. 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.

7. 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.

8. 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.

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

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in February 2017 the applicant made an application for a Working Holiday (Extension) subclass 417 visa, which was granted to him in February 2017 and was valid until 13 May 2018. The primary decision record indicates that in that application, the applicant provided false or misleading information concerning his employment in a regional area.

10. The delegate wrote to the applicant seeking his comments on that information. The applicant replied by admitting that the information concerning his past employment was false or misleading but stated that the information was submitted by his migration agent without his knowledge (the delegate notes that the applicant did not nominate a migration agent when making the Working Holiday visa application). The applicant also sought the waiver of the PIC 4020.

11. In his submission to the Tribunal of 18 July 2024 the applicant also concedes that false or misleading information was provided in relation to his previous visa application.

12. Whatever the circumstances leading to the provision of false or misleading information, the Tribunal finds, having regard to the applicant’s own admission, that the information the applicant gave in his Working Holiday visa application concerning his employment was incorrect. That information was false or misleading. The Tribunal finds that it was a requirement for the grant of an Extension Working Holiday visa that the applicant must have completed a period of employment in Australia in a particular area. That is, the information was relevant to a visa criterion and was false or misleading in a material particular.

13. The Tribunal finds that there is evidence that the applicant had given, or caused to be given, to the Minister or an officer, information that is false or misleading in a material particular. The primary decision record indicates that the Working Holiday visa was valid until May 2018 and the application for the Partner visa was made in May 2018. The Tribunal finds that the applicant held the Working Holiday visa in the 12 months before the visa application was made. The Tribunal finds that the applicant does not meet PIC 4020(1).

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

14. PIC 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 PIC 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: PIC 4020(2AA).

15. There is no evidence to indicate that the applicant or any member of the family unit (as defined in reg 1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1). Therefore, PIC 4020(2) does not apply.

    Should the requirements of PIC 4020(1) or (2) be waived?

16. 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.

17. 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.

18. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

19. In his submission to the delegate the applicant referred to his long-term relationship with the sponsor and the couple’s emotional attachment to each other. The Tribunal is not convinced that these matters constitute compelling or compassionate circumstances. However, in his submission to the Tribunal of 18 July 2024 the applicant presented additional evidence, including the birth certificate of the child of the relationship, born in June 2022.

20. The Tribunal accepts that the applicant and sponsor have a minor child, who is an Australian citizen. The Tribunal accepts that given his age, the child is reliant on the applicant and that the separation of the child from his father (if the applicant’s visa is not granted) may cause significant hardship to the family. The Tribunal is of the view that these circumstances constitute compassionate circumstances that affect the interests of an Australian citizen (the applicant’s child) that justify the granting of the visa.

21. The applicant presented other claims in support of the waiver, stating that his partner suffers from post-natal depression and also referring to the family’s business. Having found that the presence, and the needs, of the Australian citizen minor child constitute a compassionate circumstance affecting the interests of an Australian citizen justifying the waiver, the Tribunal has not given consideration to the other claims put forward by the applicant.

22. The Tribunal finds that the requirements of PIC 4020(1) should be waived.

    Has the applicant satisfied the identity requirements?

23. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There is nothing before the Tribunal to suggest that  there are any concerns in relation to the applicant’s identity requirements. Therefore, the applicant meets PIC 4020(2A).

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

24. 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).

25. There is nothing to suggest that the applicant or a member of his  family unit had been refused a visa because of a failure to satisfy PIC 4020(2A). Therefore PIC 4020(2B) does not apply.

    Conclusion

26. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 820.226.

    DECISION

27. 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

    Kira Raif
    Senior Member