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) (class UK) (class 820) visa application on 12 February 2020. The applicant submitted various documentation including a marriage certificate to demonstrate she had married her Australian citizen sponsor on 29 April 2016.
The delegate noted the significant inconsistencies between the information the applicant provided in her Visitor visa application as opposed to her Partner visa application just six months later. The delegate noted cl 600.211 of the Regulations that states, “The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.” The delegate noted in determining the grant of a Visitor visa, a decision maker is required to consider “any relevant matter” (cl 600.211(c)). Policy, the delegate noted, included personal circumstances that would encourage the applicant to return home at the expiry of the temporary Visitor visa including the presence of close family members in PR China. The delegate noted that, given the applicant had stated she had no contacts whatsoever in Australia, was divorced, and had a child in PR China, these were all matters relevant to an assessment of her Visitor visa application, and to the ‘genuineness’ of her purported intention to only stay on a temporary basis in Australia.
The delegate considered the fact the applicant was married to an Australian citizen, and had been for over 3 years, was a relevant matter that would have been assessed by the delegate when considering whether the applicant actually intended to depart Australia as a temporary visa holder and return to PR China.
The delegate concluded that the applicant had declared false or misleading information regarding her marital status and contact in Australia in relation to her Visitor visa application lodged and held in the 12 months prior to lodging the current Partner visa before the Tribunal. The delegate wrote to the applicant and invited them to provide comment on the suspected false and misleading information contained in the Visitor visa application. The applicant responded that the incorrect information was essentially the result of a series of innocent administrative errors, including by a third party that assisted with the application. The delegate did not accept this explanation and concluded false and misleading information had been provided in the Visitor visa application about both the applicant’s marital status and contacts in Australia, and this information contained some purposeful falsity in achieving a migration outcome. The delegate concluded the applicant had provided, or caused to be provided, false or misleading information in relation to her Visitor visa application and subsequently did not meet PIC 4020(1).
The delegate subsequently considered whether the applicant satisfied PIC 4020(4) for the waiver of the PIC 4020(1) criterion on the basis that there were compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.
The delegate noted the applicant, who provided some further information, in fact provided no direct response addressing the invitation to provide any compelling or compassionate circumstances to waive PIC 4020(1). The delegate nevertheless considered matters such as the age and health of the sponsor, and the status of the sponsor’s four children in Australia. The delegate was not satisfied the applicant’s absence from Australia would significantly impact the sponsor’s interests, or affect the interest of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.
The delegate in his decision found that the applicant did not meet the PIC 4020(1) criterion, and having considered the evidence before her, she was not satisfied there were compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen to satisfy the waiver provisions. The delegate found that the applicant did not satisfy PIC 4020(1), and subsequently did not meet cl 820.226.
The applicant appeared before the Tribunal on 10 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s Church colleague Mr Aiguo Xue and from the sponsor Mr Shu Qing Chen. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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.
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.
The Tribunal discussed in significant detail at its hearing the delegate’s finding that the applicant had given, or caused to be given, a bogus document, or information that is false or misleading in a material particular in relation to her Visitor visa application of 31 July 2019.
The applicant conceded at the Tribunal’s hearing that there had been non-compliance in relation to her Visitor visa application, and false information had been provided. The Tribunal asked the applicant why she had stated in her Visitor visa application that she had no contacts in Australia, and her one remaining relative was her child in PR China. The applicant responded that she provided all of the information for her Visitor visa application in 2019 to a friend of her niece who knew someone that would prepare and lodge the application. The Tribunal noted that incorrect information had been provided. The applicant replied that she did not know at the time this incorrect information had been provided as she did not check what was lodged.
The Tribunal noted the applicant had been married for 3 years at the time of the application and asked if the representative or agent she had used had asked her marital status. The applicant claimed they did not ask. The Tribunal noted that the applicant was required to sign her own Visitor visa application form and note the information contained therein was correct. She replied she was essentially unaware of the specifics as to what was in her lodged application, but she had provided all the information to her agent or representative. The Tribunal asked if she had signed the application form. The applicant responded that her agent or representative had signed the forms.
The applicant claimed in response to the Tribunal’s questions that when lodging the Visitor visa application, she only intended to visit her husband, the sponsor, and her original plan was to return to PR China at the conclusion of the visa.
The applicant stated she did not lie as she was a Christian. She stated she had always travelled in other countries and had not been asked questions about issues such as her marriage. She claimed that in PR China marriage is not updated in an individual’s household registration book.
The Tribunal has considered the oral testimony from its hearing as well as all written submissions made to both itself and the delegate.
The Tribunal has considered the applicant’s submission that she had essentially no intention to deceive the Department in her visa application in relation to matters such as her marital status, and she had quite simply provided information to her niece’s friend who then somehow facilitated the Visitor visa application with an agent or representative, including signing the application on her behalf. In relation to these claims that information such as her marital status and her contacts in Australia are an inadvertent error, the Tribunal notes that for the requirements in cl 4020(1) and (2) to be engaged, it is not necessary to show knowing complicity by the applicant in the fraud: Trivedi v MIBP (2014) 220 FCR 169 at [43]–[44]. The words ‘given or caused to be given’ do not import a mental element such that an applicant needs to know that the documents or information they are providing are defective in the relevant sense: Vyas v MIAC [2012] FMCA 92 at [68]. All that is necessary is that the information provided was purposefully false: Trivedi v MIBP (2014) 220 FCR 169. In this case, the applicant was responsible for the submission of her Visitor visa application. The information the applicant has given to the Department in her Visitor visa application clearly stated she was divorced and had no contacts in Australia – she has stated however that the intention of her trip was to spend time with her husband, the sponsor, an Australian citizen, and resident. The Tribunal considers the incorrect information provided to the delegate as to her marital status and her lack of Australian contacts (including a failure to provide the address of her husband, whom she stated at the Tribunal’s hearing was the purpose of her visit) was so as to increase the likelihood of the Visitor visa being granted, allowing the applicant to lodge a permanent Partner visa applicant onshore. The Tribunal considers the false information that was provided as to her marital status and lack of Australian contacts, that included incorrect Household Registration information stating she was divorced, was purposefully false or misleading. The Tribunal does not accept the failure to update her Household Registration in the 3 years after her marriage was the result of an oversight.
The Tribunal would also note that an applicant is responsible for the submissions they submit. The Tribunal does not accept, on the evidence before it, that the applicant was unaware that she had submitted false or misleading information to the Department as part of her Visitor application. The Tribunal considers the attempt to sheet home responsibility for the provision of false information to various third parties is self-serving and convenient. The Tribunal considers there was an intention to reach Australia so a permanent visa application could be lodged onshore, and the best chances at achieving this migration outcome was the lodgement of a Visitor visa that suggested the applicant’s visit to Australia was temporary, and she had greater ties in PR China (her daughter) than in Australia (where she had an Australian citizen husband). The Tribunal is of the opinion, based on the evidence before it, that false or misleading information was submitted by the applicant to the delegate with ‘purposeful falsity.’
The Tribunal considers this evidence is relevant to its assessment whether there was an element of fraud or deception by the applicant which has attracted the operation of PIC4020(1): Trivedi v MIBP (2014) 220 FCR 169. The Tribunal considers the provision of false and misleading information to the Department in the application involved an element of fraud or deception on the part of the applicant.
In summary, the Tribunal has considered whether the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth:
·A ‘bogus document,’ as defined in s 5(1), i.e., a document that the Tribunal reasonably suspects is a document that:
o   purports to have been, but was not, issued in respect of the person; or
o   is counterfeit or has been altered by a person who does not have authority to do so; or
o   was obtained because of a false or misleading statement, whether or not made knowingly; and/or
·Information that is false or misleading in a material particular, as defined in PIC 4020(5), i.e., information that is:
o   false or misleading at the time it is given; and
o   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;
o   in relation to the visa application or a visa held in the 12 months before the visa application was made.
There is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5). This evidence is as follows:
In regard to ‘information that is false or misleading in a material particular,’ as defined in PIC 4020(5):
oIn the applicant’s previous Visitor visa application lodged on 31 July 2019 the applicant stated on her forms that her marital status was divorced. In support of this she provided a copy of her PR Chinese household registration documentation that recorded her marital status as divorced.
oIn the applicant’s previous Visitor visa application lodged on 31 July 2019 the applicant stated she had no contact in Australia.
The Tribunal finds the applicant has falsely claimed in her previous Visitor visa application to be divorced and have no contacts in Australia. The Tribunal considers these assertions were made to strengthen the likelihood of her being granted a Visitor visa, to enable her to visit Australia and lodge a permanent Partner visa application onshore. The Tribunal considers this false information was supplied for migration purposes. The Tribunal considers the evidence suggests the applicant attempted to deliberately deceive the Department in relation to his relationship situation and her strong links with an Australian citizen who is usually resident in Australia – being her husband - at the time of her Visitor visa application on 31 July 2019.

The Tribunal finds the information contained in the applicant’s previous Visitor visa application of 31 July 2019, claiming to be divorced and claiming no contacts in Australia, was both purposefully false or misleading at the time it was given, and is directly relevant to the criteria the Minister may consider when making a decision on whether the Visitor visa be granted, cl 600.211(c) of the Regulations, that states “The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”. The Tribunal considers, as policy notes, personal circumstances that would encourage the applicant to return home at the expiry of their temporary Visitor visa are of direct relevance. The information provided that the applicant was divorced (when she had been married to an Australian citizen and resident for 3 years) and had no contacts in Australia (when she had a long-term Australian citizen husband who she told the Tribunal was the purpose of her visit) but had close family members like her daughter in PR China is all of direct relevance in any assessment as to whether she intended to remain in Australia only on a temporary basis for one year.
The Tribunal finds that this information meets the definition of ‘information that is false or misleading in a material particular’ defined in PIC 4020(5).
The Tribunal thus finds that the applicant supplied ‘information that is false or misleading in a material particular’ to the Department as defined in PIC4020(5). This information, the Tribunal considers, was false and misleading at the time it was given.
On the basis of the evidence and the Tribunal’s findings above, the Tribunal is satisfied that the applicant has purposely given information that was false or misleading at the time it was given, and which is relevant to the criteria the Minister may consider when making a decision on an application, namely cl 600.211. The false or misleading information provided by the applicant was false or misleading in a material particular because this information was central to the assessment of the applicant’s claim that at the time of application she only intended to visit Australia on a temporary basis, and her ties with PR China were much stronger than her ties with Australia.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
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.
The Tribunal invited the applicant at the hearing to submit any compelling circumstances that affected 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 justified the granting of the visa.
No compelling circumstances that affect the interests of Australia have been submitted. The Tribunal is subsequently satisfied on the evidence before it that there are no compelling reasons that affect the interests of Australia that justify exercising the waiver and granting the visa.
The Tribunal has considered whether 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 applicant has held out her relationship with her husband, the sponsor of her Partner visa, as a compassionate or compelling circumstance that affects the interests of him as an Australian citizen, as well as his son who is also an Australian citizen and lives with the applicant and the sponsor. The applicant, together with the sponsor, has made submissions seeking to establish that compelling or compassionate circumstances exist by reason of the hardship and distress the sponsor, an Australian citizen, will face from the possible separation of the applicant should her visa be refused. This stress and hardship extend to the sponsor’s son, an Australian citizen, who resides with the applicant and sponsor.
The Tribunal is mindful that these claimed compassionate or compelling circumstances arise in the context of an application for a Partner visa that was also refused by the delegate on the basis they were not satisfied the applicant and sponsor were in a genuine and continuing spousal relationship. The Tribunal discussed the relationship with both the applicant and the sponsor in some detail at its hearing. The Tribunal has reviewed the evidence submitted as to the genuineness of the purported relationship. Despite the clearly false or misleading information that was supplied as part of the Visitor visa application, the Tribunal does accept that the applicant and sponsor are in a genuine and continuing spousal relationship, both at the time of application and the time of decision, based on all the evidence before it.
The Tribunal however is required to still make a finding in relation to the PIC 4020 waiver (under PIC 4020(4)), given the evidence is the applicant clearly does not meet the requirements of PIC 4020(1).
The decision in Wu v MICMSMA [2021] FCCA 1091 is of relevance in the Tribunal’s assessment. Wu holds that each of the 1.15A factors must be considered, and findings made against them, and then consideration be given as to whether any of the findings made against reg 1.15A either singularly or cumulatively are compelling or compassionate and if so, if it justifies the granting of the visa. The Tribunal notes that the Wu decision is also authority for the proposition that simply being in a genuine (s 5F) relationship is not of itself compelling. The question before the Tribunal is whether there is anything in the reg 1.15A matters that makes up that claimed genuine relationship which can be considered compelling or compassionate circumstances.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The applicant stated she cannot leave her husband because of his poor health. The applicant stated the sponsor suffered from headache, dizziness, and cramps during his sleep, stating he suffers from frozen shoulder and sometimes doesn’t understand what he is saying. The sponsor in his own evidence stated he suffered from frequent headaches and his hearing was not particularly good. The Tribunal asked for any current medical evidence in support of these claims. None was provided. The applicant stated the sponsor cannot live without her.
The Tribunal is not satisfied that the sponsor’s health, and his health needs, are a compelling or compassionate reason to waive the PIC 4020(1) requirements. The Tribunal notes the sponsor is now 69 years of age and facing some age-related health conditions. The Tribunal would note however that he continues to work full-time in a physically demanding job as a plasterer. As a long-term Australian citizen and resident, he can avail himself of universal health care through the public health system and Medicare. The sponsor furthermore has the benefit of his 35-year-old adult son who resides with the parties and is not in full-time employment. The Tribunal is satisfied that he may be of practical assistance to the sponsor, if necessary, despite the applicant’s claim he is selfish and more focused on playing his computer games. The sponsor furthermore has 3 other adult daughters living in Sydney. It was submitted that they would be unable or unwilling to provide, assistance or support as needed to the sponsor. The Tribunal finds it challenging to accept this proposition in the absence of any evidence to this effect. The Tribunal does not consider, based on the evidence before it, that the sponsor’s health, and his specific health needs are compelling or compassionate reasons to waive the PIC 4020(1) requirements, particularly when any hardship can be mitigated. The Tribunal does not consider the sponsor’s age is a compelling or compassionate reason to waive the PIC 4020(1) requirements based upon these circumstances. The Tribunal is not satisfied, in the absence of any satisfactory evidence, that the sponsor’s adult son he lives with, and his 3 other adult children in Sydney, are unwilling or unable to provide the sponsor with a degree of support or assistance if necessary. The Tribunal finds none of these matters a compelling or compassionate reason to waive the PIC 4020(1) requirements.
The practical assistance, such as the housework, the applicant provides at the residence where the applicant, sponsor and the sponsor’s son lives was held as a compelling or compassionate reason to waive the PIC 4020(1) requirements. The Tribunal accepts the applicant is undertaking the vast majority of the housework at their residence. The Tribunal accepts there will be extra work and responsibilities imposed on the sponsor and his son in this area should the applicant’s visa be refused. The sponsor is in full-time employment and can choose to seek commercial assistance if he and his adult son, do not wish to take such widespread and general responsibilities on. The Tribunal does not consider any increased demands on the sponsor and his son in these household areas are compelling or compassionate reasons to waive the PIC 4020(1) requirements.
The Tribunal does consider the applicant has raised a number of compassionate considerations.
The Tribunal accepts the sponsor is genuinely fond of the applicant and has no desire at this point in his life to relocate to PR China given his age, plus his work, financial and other family commitments are all in Australia.
The Tribunal furthermore notes that PIC 4020(2) may subject the applicant to an exclusion period of 3 years before she becomes eligible to be granted another visa. An exclusion period of such duration would compound the distress of the sponsor (and of course the applicant). The Tribunal is satisfied that this raises compassionate considerations.
The Tribunal has considered the claimed spousal relationship of the applicant and her Australian citizen sponsor, and whether there is anything in the reg 1.15A matters that makes up that claimed genuine relationship which can be considered compelling or compassionate circumstances: Wu.
In relation to the financial aspects of the relationship, the Tribunal is not satisfied there are compelling or compassionate circumstances on any of the criteria either individually or collectively that meets the waiver requirements. The Tribunal finds the sponsor and applicant have no joint ownership of real estate or other major assets, instead they are living at the sponsor’s home he owns outright. The Tribunal finds there is no evidence of joint liabilities. In relation to pooling of financial resources, the Tribunal accepts the parties hold a joint bank account that each uses for day to day living costs, and the parties have lived together from the proceeds the sponsor makes as a plasterer, whilst the sponsor did previously working in a factory. The Tribunal also notes the evidence that the sponsor was sending significant amounts of money to the applicant in PR China after they married on multiple occasions. The Tribunal finds the parties are pooling their financial resources as a couple. The Tribunal finds there is limited evidence as to any legal obligations the applicant and sponsor have in respect of the other.
In relation to the nature of the household, the Tribunal accepts the applicant and sponsor are residing together with the sponsor’s 35-year-old son who the applicant plays a role in supporting. The Tribunal notes however he is an adult, and subsequently finds there is no joint responsibility for the care and support of children. The Tribunal finds it is satisfied that the living arrangements of the persons are largely as they have submitted, with the applicant residing with the sponsor as she has stated since arriving in Australia in 2019. The Tribunal accepts there is a familiarity the parties have and a commitment to each other, but the Tribunal does not consider these living arrangements to be a compelling or compassionate circumstance to waive the requirements. In relation to the sharing of housework, as discussed previously in this decision, the Tribunal accepts the housework in the home is overwhelmingly carried out by the applicant, but it does not consider this is a compelling reason or compassionate reason to exercise the waiver. In relation to the nature of the household, the Tribunal is not satisfied there are compelling or compassionate circumstances that meet the waiver requirements.
In relation to the social aspects of the relationship, the Tribunal is satisfied that the applicant and sponsor represent themselves to other people as being in a genuine spousal relationship. The Tribunal particularly notes the oral testimony of Mr Aiguo Xue from their Christian Church in Auburn who attended the Tribunal’s hearing and spoke at great length and in detail about the applicant’s role at the Church, and the genuine and long-term relationship that existed between the parties. Whilst the Tribunal accepts these claims, the Tribunal does not consider this matter is a compelling or compassionate circumstance for the waiver of the PIC 4020(1) criteria. Similarly, the Tribunal is satisfied the applicant and sponsor’s friends and acquaintances view the relationship as genuine after almost 8 years. Again, there is nothing however in the evidence concerning this aspect of the relationship that the Tribunal finds a compelling or compassionate circumstance to exercise the waiver. In relation to the basis on which the applicant and sponsor plan and undertake joint social activities, the Tribunal notes the sponsor takes the applicant to Church regularly. They enjoy visiting registered clubs in their local area together. The Tribunal considers the applicant and sponsor live a fairly practical life together but is not satisfied there is anything compelling or compassionate about their social activities either individually or collectively that meets the waiver requirements.
The Tribunal has considered the nature of the applicant and sposnor’s commitment to each other. On the evidence before it, the Tribunal is satisfied that the parties are genuinely committed to each other and have been in a married relationship now for almost 8 years. The applicant has submitted that apart from trips to PR China in November 2019 and March 2024 to attend to some matters over a few weeks, they have been living alongside each other continually. The Tribunal considers the duration of the relationship, and their period of cohabitation, which the Tribunal accepts, is a compelling or compassionate circumstance for the waiver.
The Tribunal has considered the degree of companionship and emotional support the applicant and sponsor draw from each other as a compelling or compassionate circumstance for the waiver. The applicant and sponsor both spoke at the Tribunal’s hearing to the distressing and untimely death of the applicant’s son in PR China in 2023, and the sponsor urgently accompanying the applicant back to PR China to provide her with support and comfort. The Tribunal is satisfied the applicant and sponsor have a genuine affection for each other and, as older people, have become more reliant upon each other in recent years. The Tribunal considers the companionship and emotional support the parties provide each other is similarly a compelling or compassionate circumstance for the waiver, notwithstanding the Tribunal does think they can continue to provide each other with emotional support remotely through modern electronic technology should the applicant be compelled to depart Australia. The Tribunal accepts that the applicant and sponsor see their relationship as long-term. They have submitted that they would like to see the sponsor work for several more years before retiring and travelling overseas together. The Tribunal accepts the claims as to the companionship and emotional support the parties provide each other as compelling or compassionate circumstance for the exercise of the waiver.
The Tribunal has considered the applicant’s submissions, and the matters submitted for the exercise of the waiver of the PIC 4020(1) requirements both individually and collectively. The Tribunal finds that the degree of companionship and emotional support the applicant and sponsor are providing each other can be classified as compassionate circumstances that affect the interests of an Australian citizen. The Tribunal also considers the applicant being potentially subject to an exclusion period of 3 years before she becomes eligible to be granted another visa is a compassionate consideration.
Given all the evidence before the Tribunal, it becomes necessary for the Tribunal to consider, having regard to those circumstances, whether the discretion should be exercised to waive PIC 4020(1). The Tribunal has considered the circumstances in which the clearly false and misleading information was provided by the applicant.
In order to consider the exercise by the Tribunal of this discretion under PIC 4020(4), it is necessary for the Tribunal to evaluate and consider the context in which the false and misleading information was provided in the previous Visitor visa application.
The applicant originally applied for a Visitor visa, which requires the delegate be satisfied that the applicant “genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.”
As the delegate noted, there are significant inconsistencies between the information the applicant provided in her Visitor visa application as opposed to her Partner visa application just six months later. These were not minor matters, such as her marriage in 2016, an Australian citizen husband she states she is in a close and endearing relationship with, and her stated plans at the Tribunal’s hearing to stay with her husband whilst in Australia. The applicant was silent on all these matters in her Visitor visa application. Her Visitor visa application was made with the clear and quite unfrankly unequivocal message that her visit was temporary, she had no family in Australia, no contacts in Australia, her immediate family was in PR China, and she would return to PR China at the expiry of her temporary visa.
The delegate was required to make an assessment of cl 600.211 of the Regulations that states “The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted” (cl 600.211(c)) and in doing so consider “any relevant matter” that, as the Tribunal has already noted, is taken by policy to include personal circumstances that would encourage the applicant to return home at the expiry of the temporary Visitor visa including the presence of close family members in PR China. Whilst it is obviously impossible for the Tribunal to make a certain assessment as to what the delegate’s final decision would have been in relation to the Visitor visa application should they have had the correct information before them, the Tribunal is satisfied that these factors were clearly germane to the delegate’s assessment and would have had a significant impact upon the assessment process for what is a relatively short-term, temporary visa. Had the correct information been supplied, and the misrepresentation not been made, it would have been clear that there was a significant likelihood the Visitor visa application was not granted.

The Tribunal considers the information provided by the applicant, where she falsely claimed she had no contacts whatsoever in Australia, and was divorced rather than married to a Australian citizen and long-term resident were all matters relevant to an assessment of her Visitor visa application, particularly given she also noted her daughter in PR China, and were relevant to the ‘genuineness’ of her purported intention to only stay on a temporary basis in Australia.
False misrepresentations appear to not only appear in the application for the Visitor visa. The Tribunal at its hearing noted the contradictions in the applicant’s current Partner application, where she provided a statement from a friend who stated he introduced the applicant and sponsor. This, as originally discussed in the delegate’s decision, was in contradiction to evidence the applicant provided in her interview with the delegate where she stated they were not introduced by a friend, rather they met as strangers on a public bus in 2016. The applicant stated that neither version was in fact correct. She stated her previous representative had told her to say this, and the reality was she and the sponsor were introduced by the wife of the brother of her husband (the sponsor’s) ex-wife, and by her husband’s third daughter. This occurred at the end of March 2016. The Tribunal notes the applicant is essentially confirming that false information has also been provided by her with her Partner visa application. Whilst the Tribunal appreciates the candour and honesty of the applicant in voluntarily conceding this (and notes it does actually accept the applicant and sponsor are in a genuine spousal relationship), the Tribunal is nevertheless concerned by the applicant’s propensity to provide false or misleading information in her visa applications to suit her circumstances. The Tribunal also notes the applicant has again tried to apportion blame for providing such information to the advice provided through the utilisation of a third party to prepare her Partner visa application. The Tribunal considers this explanation self-serving. The applicant remains responsible for what she provides in her applications, both the Visitor visa and the Partner visa.
The Tribunal finds the false or misleading information in the Visitor visa application of the applicant was relevant to the grant of the visa for the reasons aforementioned. The Tribunal has no confidence in relation to the explanation for the circumstances of the matter and does not accept either that the incorrect information provided was in error, nor was it the fault of her representative or other third party. The Tribunal, having accepted the applicant and sponsor are in fact in a genuine spousal relationship today, bears in mind the distress refusal of the visa will cause both parties. It must nevertheless be considered that this distress has been brought about largely by the actions in providing false and misleading information in the Visitor visa application, a situation that the applicant has plainly stated to the Tribunal that happened again with the current Partner visa application. Such actions adversely affect and undermine the integrity of the visa process, and Australia’s migration system more broadly. Such actions undermine faith in our migration system. The Tribunal finds that these facts outweigh the compassionate circumstances before it in determining whether the requirements of PIC 4020(1) ought to be waived.
Therefore the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 820.226.
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 Chen
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 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.
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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.
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