Magbanua (Migration)

[2023] AATA 2798

Magbanua (Migration) [2023] AATA 2798 (30 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Edna Magbanua

REPRESENTATIVE:  Dr Mahmoud AJJAWI (MARN: 9900118)

CASE NUMBER:  1902145

HOME AFFAIRS REFERENCE(S):          CLF2014/91717

MEMBER:Mila Foster

DATE:30 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 June 2023 at 11:01am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – false or misleading information – relationship had ceased – living arrangements and relationship with the sponsoring partner were incorrect – breached PIC 4020 – no compelling circumstances – requirements of PIC 4020 (1) should not be waived – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cls 801.221, 801.226

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184

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 15 January 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) (Subclass 801) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 June 2014. The application was a combined application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Subclass 801 visa. She applied for the visas on the basis of her spouse relationship with Geoff Morhi, the sponsoring partner.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 801.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she did not meet Public Interest Criterion 4020 (PIC 4020). More specifically, the delegate found that the applicant did not meet the requirements of PIC 4020(1) because she had given false or misleading information in a material particular in relation to her visa application.

4. The applicant appeared before the Tribunal on 23 June 2023 to give evidence and present arguments.

5. The applicant was represented in relation to the review. The representative attended the hearing and made oral submissions.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In addition to the oral evidence and submissions presented at the hearing, the evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application.[1]

   [1] Department file no. CLF2014/91717 (DF).

8. The issue in this review is whether the applicant meets PIC 4020(1) which requires that there is no evidence that the visa 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. The requirement in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4).

   Background and summary of evidence

9. The applicant is a 58-year-old Malaysian national who was granted a Subclass 820 visa on 14 July 2015 on the basis that she was the spouse of the sponsoring partner, a 69-year-old Australian citizen.

10. On 18 April 2016, the Department wrote to the applicant inviting her to submit documentation for the processing of the permanent Subclass 810 visa.[2]

    [2] DF, ff.335,146.

11. On or about 9 May 2016 the applicant submitted various documents to the Department including a ‘Partner visa application – information for permanent stage processing’ form signed by the applicant and dated 23 April 2016 (hereafter the Permanent Processing Form), a ‘Statutory Declaration – Partner Visa (Applicant)’ made by the applicant on 29 April 2016, and a ‘Statutory Declaration – Partner Visa (Sponsor)’ made by the sponsoring partner on 23 Apr 2016.

    a.In the Permanent Processing Form, the applicant stated that her residential address was an address in Punchbowl (in New South Wales).

    b.In the statutory declaration the applicant made on 29 April 2016, she gave the same Punchbowl address as her address and stated that her relationship with the sponsoring partner was genuine and continuing, she and the sponsoring partner were living together, their relationship had begun in 2013 and they had been living together for 3 years.

    c.In the statutory declaration the sponsoring partner made on 23 April 2016, he also gave the same Punchbowl address as his address and stated that his relationship with the applicant was genuine and continuing, he and the applicant were living together, their relationship had begun in 2013 and they had been living together for 3 years.

12. However, on 29 April 2016 the sponsoring partner told the Department that he and the applicant had not been together for the last 7 months,[3] and on 14 May 2016 he sent an email to the Department withdrawing his sponsorship of the applicant. He stated in the email that the applicant had moved out of his residence at the Punchbowl address on 4 October 2015 and the parties had been separated since then.

    [3] DF, f.147.

13. On 26 May 2016, the Department wrote to the applicant stating that it had information that her relationship had ceased and inviting her to explain her current circumstances and the reason for the breakdown of the relationship. In response, the applicant submitted a statutory declaration made by the sponsoring partner on 21 June 2016[4] in which he stated that he had sent the email on 14 May 2016 in anger. He said the applicant had left him about 7 months ago because he had ill-treated her, he regretted his past actions, the parties were making good progress towards reconciling, and he and the applicant would reside together.

    [4] DF, ff.198-198.

14. Then on 24 and 25 January 2018, the sponsoring partner again informed the Department that the applicant had left him on 4 October 2015 and that he no longer wished to be her sponsor.

15. On 1 February 2018 the Department wrote to the applicant stating that it had information that her relationship had ceased and inviting her to explain her current circumstances and the reason for the breakdown of the relationship. The applicant subsequently appointed a representative (the same representative she appointed in relation to the review), who informed the Department on 26 February 2018 that the applicant had been subjected to family violence by the sponsoring partner. On 9 March 2018, the representative submitted documents to the Department on behalf of the applicant which included a Form 1410 ‘Statutory declaration for family violence claim’ made by the applicant on 5 March 2018 (Form 1410 Statutory Declaration) as well as other evidence in support of her claim to have been subjected to family violence by the sponsoring partner during their relationship. The applicant claimed that the family violence included verbal abuse, controlling behaviour and rape.

16. On 26 November 2018 the Department wrote to the applicant explaining PIC 4020(1) and stating that an initial conclusion had been reached that the information in the statutory declaration she had made on 29 April 2016 and the sponsoring partner had made on 23 April 2016 that the parties were living together was false and misleading information in a material particular. The applicant was invited to comment on the information and to specify any circumstances of the kind in PIC 4020(4) that justified the waiver of PIC 4020(1).

17. The applicant responded by submitting a statutory declaration she made on 11 January 2019. She stated that she began living at the Punchbowl address with the sponsoring partner at the end of 2013, they had a big fight in 2015, she moved to a friend’s house in Campsie where she stayed for two months and then found a unit close to her work. She said she and the sponsoring partner reconciled after 6 weeks and reached a mutual agreement that they would live in two separate units but would spend one or two days a week in either unit as husband and wife. She said this arrangement continued until December 2017 when their relationship completely broke down. She said that during the time the parties lives in separate units she continued to receive correspondence at the Punchbowl address which the sponsoring partner would bring to her. She stated that she had never intended to mislead Immigration or provide false information; she said the parties had been husband and wife even though they were living in separate units until the end of 2017. She stated that she had lived in Australia for over 5 years during which time she had adjusted to its values and laws. She said she had been working at two childcare centres since 2014 and did volunteer work at the Malay Australian Association of NSW where she taught the Malay language and culture. She asked for compassion and understanding by having her application considered under the ‘Family Violence stream’. The applicant also submitted photographs and other documents including a letter from her employer and the Malay association. 

18. In refusing the application the delegate concluded that the parties were not living together when they made their statutory declarations on 23 and 29 April 2016 and found that the applicant had given information that was false or misleading in a material particular in relation to cl 801.221(2) and hence the applicant did not satisfy the requirements in PIC 4020(1). Further, the delegate was not satisfied that there were grounds to justify waiving the requirements in PIC 4020(1). The Tribunal notes that cl 801.221(2) includes the requirements that the applicant is the spouse or de facto partner of the sponsoring partner. ‘Spouse’ is defined in s 5F(2) of the Act and provides that a married couple must live together or not live separately and apart on a permanent basis: s 5F(2)(d).

19. At the hearing the applicant stated that she had not intentionally provided false or misleading information to the Department. She said that the information in her statutory declaration of 11 January 2019 about her living arrangements and relationship with the sponsoring partner were correct. She said she left the Punchbowl address where she was living with the sponsoring partner on 4 October 2015 because he was abusive, and never returned to live with him at the unit. She said that when she first moved out she stayed at a friend’s place for 2 months before she got a unit In Lakemba. She stated that despite living in separate units the parties continued to be husband and wife until December 2017, and that she and the sponsoring partner would regularly spent a day or a few days with each other at the sponsoring partner’s Punchbowl unit or her unit. She said she often asked the sponsoring partner about moving back into his Punchbowl unit but he wanted their separate living arrangements to continue. She said their living arrangements continued until December 2017 when the sponsoring partner asked her to sign a divorce application which she refused to do and their relationship ceased.

20. The Tribunal put to the applicant that if the above was true then it could appear that information in the Permanent Processing Form and statutory declarations made on 23 and 29 April 2016 about her residential address and the parties’ living arrangements was false or at least misleading in a material particular relating to their living arrangements. The Tribunal asked the applicant to explain why she stated in the Permanent Processing Form that the Punchbowl address was her residential address if she was living in Lakemba, why the addresses for the parties provided in the statutory declarations made on 23 and 29 April 2016 were the Punchbowl address, and why she and the sponsoring partner stated in the statutory declarations that they were living together. The applicant responded that she completed those documents as instructed by the sponsoring partner; she said he promised she would get the visa and to write whatever he told her. She said she rather than the sponsoring partner completed the documents because he could not write very well. The applicant confirmed that she could read, write and speak English. The applicant also told the Tribunal the sponsoring partner had asked her to give him $5,000 and he would ‘give her the visa’. She said she told the sponsoring partner that he could not give her the visa and he replied that he meant he would ‘cancel’ the visa. She asked what would happen after she got the visa and the sponsoring partner replied they would be married. She said he gave her a week to provide the money and she decided to give the money to a friend of the sponsoring partner to pass on to the sponsoring partner after she was granted the visa but the friend gave the sponsoring partner money because he kept asking for it.

21. The Tribunal outlined the nature of the compelling or compassionate circumstances in PIC 4002(4) that justified the waiving of the requirements in PIC 4020(1) and asked the applicant whether there were any such circumstances. She stated that she had been law abiding, worked and paid tax and contributed to the country. She said she liked it in Australia, she felt she had assimilated, she saw her future here, she did not think she could work in Malaysia and did not feel like staying in Malaysia. The applicant said she had left everything to come to Australia to marry the sponsoring partner – her family, her job, her country and she expected to be with him forever. She said she deserved the visa.

22. Asked about her claims of family violence the applicant stated that the claims she had made were true. She continued with the relationship with the sponsoring partner despite the family violence because she hoped he would change and as a Muslim she had to be loyal. She said she had not presented the family violence claims to the Department sooner and did not go to the police because she did not know she could do so.

23. Asked whether she had any other evidence, the applicant told the Tribunal that the sponsoring partner had made her lie for him. He had a workers compensation claim and told her what to say to the psychologist. She said she helped him and he got workers’ compensation.

24. The representative said he believed the applicant had been truthful at the hearing, that she had not intended to be misleading. He submitted that even though her English was very good, it was not her mother tongue. He submitted that Muslim women were socialised to be obedient, follow orders and keep the matrimonial home which did not mean they did not divorce but they worked really hard at keeping their marriage. He submitted that because the applicant had a previous relationship, it would be disgraceful to her family if her second one fell apart.

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

25. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

26. 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.

27. 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.

28. It is not in dispute that the applicant gave to the Minister the Permanent Processing Form, the statutory declaration she made on 29 April 2016 and the sponsoring partner made on 23 April 2016.

29. The statements the applicant made at the hearing and in the statutory declaration she made on 19 January 2019 that she left the Punchbowl address on 4 October 2015, lived with a friend for 2 months before moving to a unit where she lived until the parties’ relationship ended in December 2017 are evidence that the residential address she provided in the Permanent Processing Form and the statements in the statutory declaration she made on 29 April 2016 and the sponsoring partner made on 23 April 2016 that the parties were living together were false at the time they were given. That the parties would stay for days at each other’s unit does not, in the Tribunal’s opinion, amount to living together nor did the applicant claim that it was.

30. The Tribunal has concluded that the applicant provided the false information knowingly. The Tribunal does not accept the representative’s suggestion that the information she provided in the Processing Form and statutory declarations made on 23 and 29 April 2016 can be explained by the fact English is not the applicant’s first language. The applicant herself did make that claim. The applicant confirmed at the hearing that she could speak, read and write English. She has presented evidence that she has studied and worked in Australia. In response to the hearing invitation, she informed the Tribunal that she did not require an interpreter and gave her oral evidence in English. The Tribunal found her oral evidence clear and her level of English high. The Tribunal thus does not believe the applicant did not understand what ‘residential address’ meant on the Permanent Processing Form or what ‘living together’ meant in the statutory declarations. The applicant herself stated at the hearing that the parties were not living together but were still husband and wife indicating that she understood the distinction between two people living together and two people having a mutual commitment to a shared life as husband and wife.

31. That the applicant followed the sponsoring partner’s instructions about what to write in the Permanent Processing Form and statutory declarations does not mean that she was unaware that the information she was providing was false. The applicant did not claim that the sponsoring partner coerced her to write that her residential address was the Punchbowl address when it was not and that the parties were living together when they were not. Rather, her oral evidence indicates that she chose to follow the sponsoring partner’s instructions because he indicated and hence she believed that what he instructed her to write would get her the visa which she very much wanted because she did not want to return to Malaysia and wanted to remain in Australia and because, in her view, she deserved the visa. The Tribunal has concluded that when it came to completing the Permanent Processing Form and the statutory declaration forms the applicant knew that stating her residential address was the Punchbowl address and that the parties were living together was false, and that she knowingly and intentionally provided that information because she believed it would be advantageous to her visa application.

1. Clause 801.221 includes requirements that the applicant is the spouse of the sponsoring partner. The Tribunal thus finds that the false information in the Permanent Processing Form and the statements statutory declaration the applicant made on 29 April 2016 and the sponsoring partner made on 23 April 2016 that the Punchbowl address was the applicant’s residential address and that the parties were living together is relevant to the criterion in cl 801.221 which the Minister may consider when making a decision on an Subclass 801  Partner visa application.

2. For the above reasons, the Tribunal finds that in submitting the Permanent Processing Form, the statutory declaration she made on 29 April 2016 and the sponsoring partner made on 23 April 2016 in connection with her visa application, the applicant has given to the Minister information that is false or misleading in a material particular’ in relation to the visa application. Therefore, the applicant does not meet PIC 4020(1).

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

3. 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.

4. 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.

5. For the following reasons, the Tribunal is not satisfied that the requirements in PIC 4020(1) should be waived.

6. The reasons the applicant gave for wanting to live in Australia are circumstances affecting her and not an identified Australian citizen, Australian permanent resident or eligible New Zealand citizen. She states that she has worked in Australia and there is evidence which the Tribunal accepts that she is employed as a child educator. However, the fact the applicant has and would continue to work, pay taxes and abide by the law (putting aside that she provided false evidence in connection with the sponsoring partner’s workers compensation claim) do not, in the opinion of the Tribunal, amount to compelling circumstances that affect the interests of Australia. In the Tribunal’s opinion it is to be expected that a person granted residence in Australia would work, if they are able to do so, pay taxes and abide by the law. That the applicant was subjected to family violence are circumstances that affected her but are not circumstances which affect the interests of Australia or an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

7. The Tribunal thus finds that there are not compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa. Therefore, the requirements of PIC 4020 (1) should not be waived.

   Conclusion

8. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 801.226.

   DECISION

9. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

   Mila Foster
   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.

   …