Nguyen (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801 (Partner). The applicant sought review of a decision to refuse the visa. The core of the dispute revolved around whether the applicant had provided a bogus document or false or misleading information in relation to her application, specifically concerning her cohabitation with the sponsor.

The legal issue before the Tribunal was whether the applicant met the requirements of Public Interest Criterion (PIC) 4020, as stipulated in clause 801.226 of the Migration Regulations 1994. This criterion broadly requires that an applicant has not provided a bogus document or false or misleading information in relation to the visa application or a previous visa held within the preceding 12 months. It also encompasses requirements regarding identity and previous visa refusals due to failures to satisfy PIC 4020. The Tribunal was required to determine if the applicant's statutory declaration regarding her residence with the sponsor contained false or misleading information, and if so, whether any exceptions or waivers applied.

The Tribunal considered the applicant's statutory declaration of 2 January 2016, which stated she was living with the sponsor at Gossamer Avenue, Mirrabooka, Western Australia. The delegate had found this information to be false and misleading, relying on departmental movement checks and Centrelink records, indicating she was not residing at that address on 3 February 2016. The applicant's representative subsequently provided submissions detailing a complex residence history, including temporary stays with her brother and the sponsor's fluctuating addresses due to treatment, housing offers, and police presence at one location. The applicant also claimed the relationship had broken down due to family violence. The Tribunal noted that while PIC 4020 can be waived for compelling or compassionate reasons, this waiver does not extend to identity requirements. The Tribunal found the applicant's evidence regarding her residence history to be unreliable and did not consider the claim of family violence as a basis for waiving the PIC 4020 requirements.

The Tribunal affirmed the delegate's decision to refuse the visa.