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

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).
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.
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
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lui (Migration)

Details

AGLC: Lui (Migration) [2024] AATA 2784
Case: [2024] AATA 2784
Decision Date: 18 July 2024

CaseChat Overview and Summary

The applicant, Lui, sought judicial review of a decision by the Administrative Appeals Tribunal concerning an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The core of the dispute involved allegations of misleading information provided in a previous visa application, specifically regarding employment in a regional area and the declaration of a different identity.

The primary legal issue before the Tribunal was whether the applicant satisfied Public Interest Criterion (PIC) 4020 for the purposes of clause 820.226 of Schedule 2 to the Migration Regulations. This criterion is relevant when an applicant has provided a bogus document or information that is false or misleading in relation to a visa application. The Tribunal was required to determine if, despite the previous misrepresentations, there were compassionate or compelling circumstances that warranted an exception.

The Tribunal found that the applicant did satisfy PIC 4020. While acknowledging the misleading information in the prior application, the Tribunal considered the existence of an Australian citizen child of the relationship and the partner's health condition as compassionate or compelling circumstances. Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant meets the relevant criteria for the Subclass 820 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.