Nguyen (Migration)

[2023] AATA 3156

Nguyen (Migration) [2023] AATA 3156 (27 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Mai Thanh Nguyen

CASE NUMBER:  1925183

HOME AFFAIRS REFERENCE(S):          CLF2012/244613 CLF2019/31470

MEMBER:Kira Raif

DATE:27 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Spouse) visa:

·Public Interest Criterion 4020 for the purposes of cl 801.226 of Schedule 2 to the Regulations

Statement made on 27 September 2023 at 12:00pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – false or misleading information – relationship status and address – child from a new relationship – compassionate circumstance affecting the interests of an Australian child – decision under review remitted        

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 801.211, 801.226; Schedule 4, Public Interest Criterion 4020; r 1.03

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 30 August 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Vietnam, born in January 1983. She applied for the visa on 7 December 2012. The applicant was granted the temporary visa in March 2013 but her application for the Migrant visa was initially refused in September 2016. The Tribunal (differently constituted) remitted the matter in July 2017 and the application was again refused in August 2019. This time 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 the delegate was not satisfied the applicant met the Public Interest Criterion (PIC) 4020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 27 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother in law Ms Jennifer O’Sullivan. The applicant was represented in relation to the review. 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 801.226 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 the applicant had been granted the Prospective Marriage visa in March 2012, entered Australia and married the sponsor in May 2012 before making the application for the Partner visa. She was granted the temporary visa in March 2013. In September 2016 the application for the Migrant Partner visa was refused and the applicant sought review with the AAT.

10. The primary decision record indicates that in her evidence to the first Tribunal, the applicant claimed that she and the sponsor purchased a property in joint names at Condell Park. It is stated that following the Tribunal’s decision to remit the matter, on 20 June 2018 the applicant provided additional evidence of her ongoing relationship with the sponsor, which included council rates and a water bill for the Condell Park home. These documents were addressed to the applicant and sponsor at a Yagoona address.

11. On 27 June 2018 the applicant was interviewed by an officer of the Department and claimed that she was at a friend’s house in Newcastle but did not live there. The applicant claimed that she continued to live with the sponsor at his father at the Condell Park property and that she had an ongoing relationship with the sponsor. The applicant stated that she worked at Newcastle and drove 5 hours to and from work each day.

12. The applicant informed the Department about her pregnancy and in June 2019 provided a birth certificate for her child Katie born in February 2019. The delegate notes that the sponsor was not listed as the father of the child and another person, Mr Daniel Smythe, was listed as the father. The primary decision record indicates that according to the records from the Department of Human Services, the applicant had been living with Mr Smythe in a de facto relationship since May 2018 at an address in Shortland between May 2018 and September 2018 and at an address at Birmingham Gardens from September 2018.

13. The delegate concluded that in her communication to the Department of 20 June 2018 and also in the interview on 27 June 2018 the applicant provided false and misleading information about her living arrangements and the status of her relationship with the sponsor when she claimed she had an ongoing relationship with the sponsor.

14. In her brief response to the natural justice letter, the applicant stated that all the information she submitted with her application and to the Tribunal was true and correct. However, as the delegate noted, the issue was not in relation to the information submitted with the application and to the Tribunal but in relation to the information submitted during the two specific interactions with the Department on 20 and 27 June 2018. The applicant also stated that she had never deliberately provided false or misleading information to the Department or the Tribunal.

15. In her statement to the Tribunal of 14 August 2023 the applicant states that the delegate considered that she and Daniel Smythe had been living together since 30 May 2018 but three weeks later she provided evidence of living with her ex-husband Mr Nguyen. The applicant denies that she had lived with Mr Smythe since May 2018 and states that at the time she was still living with work friends at Thornton. The applicant states that after the previous Tribunal decision in July 2017 she helped her husband with his family business and then worked in a chicken factory in Newcastle. At the time she lived with a work friend and paid $130 pw rent and not with Daniel, who worked in the same factory but lived with his parents. The applicant states that Daniel went on a trip to Vietnam and after his return, he proposed to become her boyfriend. At the time her relationship with her husband was not going well. The applicant states that at the time the application was made and when the previous Tribunal made the decision, she has a genuine relationship with her ex-husband. She now has a child with Daniel and they are happy together. 

16. In oral evidence the applicant told the Tribunal that her relationship with the sponsor ended about a month after the first Tribunal hearing (which took place in July 2017) as they separated at that time but had not yet divorced. The applicant states that her husband had an affair. She forgave him and they tried to normalise their relationship but soon after, he had another affair. The applicant said that she started living with Daniel Smythe around the end of 2017, although she could not be sure. The applicant states that she had been working with Daniel for a long time and had been friends. After she returned to Newcastle and Daniel returned from his holiday in Vietnam, their ‘boyfriend – girlfriend’ relationship started around the end of 2017 and she moved in to live with him after she found out she was pregnant. She divorced the sponsor in early 2020 and married Daniel in September 2020.

17. The applicant told the Tribunal that she informed her first lawyer about the relationship breakdown with the sponsor and the lawyer told her not to worry about it as the Department would find out through the child’s birth certificate. The applicant claims that her statement to the Tribunal dated 10 August 2023 was prepared by a lawyer and she did not have a full understanding of its content.

18. The Tribunal has the following concerns about the applicant’s written evidence and her claim that she did not provide false or misleading information:

    a.According to the primary decision, Department of Human Services records indicate that the applicant had been living with Mr Smythe in a de facto relationship since May 2018

    b.The applicant’s daughter was born in February 2019, which means she was conceived around May 2018 (the applicant told the Tribunal the pregnancy was full-term), consistently with the other evidence of the applicant having a relationship with Mr Smythe around that time. The applicant told the Tribunal that they did not live together until she found out she was pregnant but were ‘boyfriend and girlfriend’ and started living together when she realised she was pregnant.

    c.The applicant’s evidence to the Tribunal is that her relationship with the sponsor ended, due to him having an affair, around August 2017, a month after the first Tribunal hearing. That is inconsistent with the applicant’s evidence in her written submissions of 14 August 2023 which implied an ongoing relationship by the time Daniel proposed a relationship.

19. The Tribunal places significant weight on the applicant’s oral evidence that her relationship with the sponsor ended about a month after the first Tribunal hearing (that is, around August 2017). The applicant does not claim that her relationship with the sponsor continued to be in existence in June 2018 when she was in the processing of establishing her relationship with Daniel Smythe.

20. The Tribunal finds that the applicant’s claims to the Department in June 2018 when she stated she was in an ongoing relationship with the sponsor were false or misleading. The Tribunal further finds that the applicant’s recent evidence to the Tribunal in her submission of 14 August 2023 was misleading because she claimed in her statement that when Daniel proposed to be her boyfriend, the sponsor did not pay much attention to her and she was disappointed and fed up with his treatment. That information was misleading because the applicant’s oral evidence is that her relationship with the sponsor ended around August 2017 and it is misleading to state that he was ‘not paying attention’ to her or that she was fed up with his treatment, implying there was some form of ongoing relationship with the sponsor.

21. It is of considerable concern to the Tribunal that not only did the applicant provide false or misleading information to the delegate in June 2018, but she continued to provide false or misleading information to the Tribunal in her statement dated 10 August 2023.

22. The Tribunal finds that there is evidence that the applicant has given, or caused to be given, to the Minister, an officer and the Tribunal, information that was false or misleading. The Tribunal is of the view that information about the applicant’s relationship with the sponsor was relevant to the assessment of cl. 801.211 and was thus false or misleading in a material particular. That information was given in relation to the visa application. The Tribunal finds that the applicant does not meet PIC 4020(1).

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

23. 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.

24. 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.

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

26. In her submission to the Tribunal of 19 September 2023 the applicant confirmed that she is now in a marital relationship with Daniel Smythe and they have a common child. The applicant states that Daniel’s family support the couple and their child and the applicant has indicated her intention to apply for Ministerial intervention to enable her to make an application for a Partner visa onshore.

27. The applicant told the Tribunal that she and her husband take care of their daughter together. She does the cooking and the washing and they both play with the child. The applicant states that while she can return to Vietnam, she does not know what to do with the child as her husband does not want their daughter to go to Vietnam. 

28. Ms O’Sullivan told the Tribunal that the couple are living in a genuine relationship and want the best for their child. She states that it would devastate Daniel and the whole family if the applicant was to leave Australia or to take the child away.

29. The Tribunal accepts that the applicant has a minor child with her current partner and that the child is an Australian citizen. The applicant also claims to be in a genuine relationship with her partner who is also an Australian citizen. The applicant’s evidence is that she and her partner are primary caregivers to their child.

30. The Tribunal is of the view that the presence of a small child and the relationship between the applicant and that child, as well as the child’s reliance on her mother, constitutes a compassionate circumstance affecting the interests of the child, who is an Australian citizen. That is, the Tribunal finds that there are compassionate circumstances that affect the interests of an Australian citizen that justify the granting of the visa. Therefore the requirements of PIC 4020(1) should be waived.

    Has the applicant satisfied the identity requirements?

31. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There is no suggestion that the applicant’s identity had been at issue. Therefore, the applicant meets PIC 4020(2A).

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

32. 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).

33. The applicant has not previously been refused a visa on the basis of a failure to satisfy PIC 4020(2A). Therefore PIC 4020(2B) does not apply.

    Conclusion

34. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 801.226.

    DECISION

35. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Spouse) visa:

    ·Public Interest Criterion 4020 for the purposes of cl 801.226 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member