Pham (Migration)

[2021] AATA 4350

Pham (Migration) [2021] AATA 4350 (27 August 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Nguyen Cam Tu Pham Ms Ngoc Yen Nhi Lai

Mr Minh Quan Lai Mr Minh Hieu Lai

CASE NUMBER:  1915946

DIBP REFERENCE(S):  BCC2018/1757098

MEMBER:  P. Maishman

DATE AND TIME OF

ORAL DECISION AND REASONS:          27 August 2021 at 2:16 pm (WA time)

DATE OF WRITTEN RECORD:                2 November 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 820 (Spouse) visas:

·Public Interest Criterion 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations,

·In relation to the other visa applicants, the Tribunal remits the application for the visa to the Minister to consider the remaining criteria for the grant of the visa.

Statement made on 02 November 2021 at 2:32pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – false or misleading information in previous visitor visa application – answered ‘married’ but separated at the time and later divorced – difficulty in specifying end of relationship – credible witness and evidence – members of family unit – decision under review remitted

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cl 820.226, Schedule 4, PIC 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 7 June 2019 to refuse to grant the visa applicants Partner (Temporary) (Class UK) Subclass 820 visas under the Migration Act 1958 (the Act).

1. At the hearing on 27 August 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. I have taken into account the documents on the department’s file and the information you have provided to the tribunal. You have reiterated in your oral evidence the written submissions that have been made previously. I accept that you have given your evidence in a forthright manner and that you are a credible witness. I accept your evidence that at the time of making your visitor visa application, you were still married to Mr Lei.

1. While it is of some concern that there was not a better description of the current status of your relationship, such as being recorded as being separated, I accept that the conclusion of the relationship is often difficult to pin to a specific date. I accept that your relationship had deteriorated since the beginning of 2016, ultimately ending in divorce in May 2017. That date may not be accurate, but certainly by mid-2017.

1. The description of your relationship that you provided in your statutory declaration in 17 March 2019, that you had been separated from your ex-husband, Mr Min Quan Lei, is plausible. In the context of subsequently divorcing Mr Lei, I am satisfied that there was no false or misleading statement when you said that you were separated since mid-2016. Notwithstanding the delegate’s concern that you had described your relationship with your separated husband, Mr Lei, as married when you made your visitor visa application.

1. As there is no evidence before the Minister that you have given cause to be given false information, I find you meet Public Interest Criteria 4020(1).

1. There is no evidence before me that you or any of your family members have been previously refused a visa because you failed to satisfy Public Interest Criteria 4020(1). Therefore, Public Interest Criteria 4020(2) does not apply.

1. Public Interest Criteria 4020(2A) requires you to satisfy the tribunal as to your identity. The department’s file contains a translated copy of your birth certificate, an identity card dated 14 February 2014, and a copy of your Vietnamese passport. I am satisfied that these documents establish your identity, therefore, you meet Public Interest Criteria 4020(2A).

1. There is no evidence before the tribunal that you or your family unit members have been refused a visa previously because of a failure to satisfy the identity requirements. Therefore, Public Interest Criteria 4020(2B) is met.

DECISION

1. The Tribunal remits the decisions under review with the direction that Mrs Pham meets Public Interest Criterion 4020 for the purposes of clause 820.226 of schedule 2 to the regulations. In relation to the secondary applicants, the tribunal remits the application for the visas to the Minister to consider the remaining criteria for the grant of the visa.

P. Maishman Member