Shi (Migration) - [2025] ARTA 564

SHI (MIGRATION) [2025] ARTA 564 (20 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Huihua Shi
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2112894

Tribunal:General Member J Owen
Place:Sydney
Date: 20 March 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
I, General Member J Owen certify that this is the
Tribunal's statement of decision and reasons
Statement made on 20 March 2025 at 4.04pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – applicant did not satisfy Public Interest Criteria (PIC) 4020 – applicant had declared false or misleading information regarding her marital status and contact in Australia in relation to her Visitor visa application – no compelling reasons that affect the interests of Australia that justify exercising the waiver – PIC 4020(1) requirements should be waived – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, r 1.03, Schedule 2, cl 820.226
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Trivedi v MIBP [2014] FCAFC 42
Wu v MICMSMA [2021] FCCA 1091
Vyas v MIAC [2012] FMCA 92

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 13 September 2021 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 applied for the visa on 12 February 2020. 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 applicant did not satisfy Public Interest Criteria (PIC) 4020(1).
PIC 4020 (1) requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister or other officer bogus or information that is false and misleading in a material particular in relation to the current application or a visa that the applicant held in the period 12 months before the application was made. The evidence before the delegate was the applicant had provided false or misleading information, or bogus documentation in her Visitor (Subclass 600) visa application of 31 July 2019. The delegate noted the applicant lodged her Visitor visa application, that was subsequently granted on 2 August 2019 allowing the applicant to enter Australia on a visa valid until 2 August 2020, stating her marital status was "divorced". The applicant in her application form stated that she had no contact in Australia. The applicant also provided her PR Chinese household registration form that stated her marital status was “divorced.” It was noted by the delegate that the applicant stated her purpose of travel was short-term tourism with a companion. The applicant however arrived in Australia and subsequently lodged an onshore Partner (Temporary)…

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 Shi (Migration)

Details

AGLC: Shi (Migration) [2025] ARTA 564
Case: [2025] ARTA 564
Decision Date: 20 March 2025

CaseChat Overview and Summary

The case of Shi (Migration) involved a visa applicant who sought a Partner (Temporary) (Class UK) visa, subclass 820. The primary issue before the Tribunal was whether the applicant met the Public Interest Criteria (PIC) 4020, which is essential for the visa's grant. PIC 4020 stipulates, among other things, that the applicant must not have provided false or misleading information in relation to the visa application or any previous visa held within the past 12 months. The Tribunal had to determine if the applicant's previous declaration of false or misleading information regarding her marital status and contact in Australia during a Visitor visa application warranted denying the current visa application.

The legal issues that the Tribunal addressed included whether the applicant's past actions constituted false or misleading information under PIC 4020(1) and whether there were compelling reasons to waive this criterion. The Tribunal also had to consider if the applicant's previous visa refusals, due to non-compliance with PIC 4020, disqualified her from meeting the criteria under PIC 4020(2) and (2AA). The Tribunal concluded that there were no compelling reasons to justify the waiver of PIC 4020(1) in this case.

In its decision, the Tribunal found that the applicant did not satisfy PIC 4020(1) due to her previous false declarations. The Tribunal determined that this did not leave room for a waiver under PIC 4020(4) because there were no compelling reasons presented that would affect the interests of Australia. As a result, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa. The Tribunal's reasoning was based on the established criteria and the lack of any compelling circumstances that would warrant a departure from these criteria.

The Tribunal's final order affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, subclass 820, due to the applicant's failure to meet the PIC 4020. The Tribunal found no evidence that the applicant met the criteria for any other subclass within the class of visa sought.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 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). The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate circumstances 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). PIC 4020 is extracted in the attachment to this decision.Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular? 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. 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.

Decision

Reasons for decision

Having concluded that the applicant does not meet PIC 4020, the Tribunal finds no evidence that the applicant meets the criteria for any other subclass within the class of visa sought. DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Date(s) of hearing: 10 February 2025 Representative for the Applicant: Ms Felice ChenATTACHMENTMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the ART during the review of a reviewable migration 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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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