Sy (Migration)

Sy (Migration) [2024] AATA 2438 (27 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Mey Sy
Master Vietlin Kevin Eng
Miss Vietlin Emily Eng
CASE NUMBER:  2110495
HOME AFFAIRS REFERENCE(S):          BCC2016/1799898
MEMBER:Cheryl Cartwright
DATE:27 May 2024
PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.

Statement made on 27 May 2024 at 2:29pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – had provided false and misleading information in regard to her relationship with her sponsor – whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) – sponsor is in a de facto relationship with the applicant’s cousin – requirements of PIC 4020(1) should not be waived – applicant did not provide requested information – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 801.226
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 July 2021 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 20 May 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 801.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she had provided false and misleading information in regard to her relationship with her sponsor.
The applicants were represented in relation to the review. However, the Tribunal notes that the Migration Agents Registration Authority cancelled the agency of the representative, Mr Jack Ta, on 13 January 2023. On 19 January 2023 the Tribunal wrote to the applicant and advised her that the Tribunal is required to continue to send correspondence to Mr Ta unless advised otherwise in writing. The applicant did not provide advice to the Tribunal regarding her representation.
For the following reasons, the Tribunal has concluded that the 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 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).
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). PIC 4020 is extracted in the attachment to this decision.
The applicant arrived in Australia on 23 April 2016 on a prospective spouse visa (subclass 300) and married the sponsor on 4 May 2016. An application for a partner visa (subclass 820/801) was lodged on 20 May 2016. A partner temporary visa (subclass 820) was granted on 10 February 2017.
Delegate’s decision
In the decision dated 29 July 2021 the Minister’s delegate found that the applicant had provided to the Department information considered to be of a ‘non-genuine’ nature on 20 May 2016, 21 May 2016 and 23 December 2016.
The delegate found that the sponsor had been in a de facto relationship with the applicant’s cousin since 2009 and continued to be in a de facto relationship with her, and that the marriage with the applicant had been entered into for the purpose of obtaining a visa for the applicant, and visas for the secondary applicants.
Based on information provided to the Department, on government agencies’ files, and on further responses provided by the applicant, the Minister’s delegate found that the sponsor was, in fact, married to the applicant’s cousin and his marriage with the applicant had been entered into for the purposes of obtaining permanent residency for the applicant.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in 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.
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, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Office 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.
‘Information that is false or misleading in a material particular’ is defined in PIC 4020(5) and is 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.
in relation to the visa application or a visa held in the 12 months before the visa application was made.
Information provided by applicant
The information provided by the applicant at the time of application for the partner visa (subclass 820/801) on 20 May 2016 included:
a.That the sponsor had not been in any previous relationships
b.That the applicant’s relationship with the sponsor was genuine and continuing
c.The residential addresses of the applicant and sponsor, which were inconsistent with evidence on government files
After the granting of the partner temporary visa (subclass 820) and during the processing of the application for a partner resident visa (subclass 810), the Department received information that, at the time of application, the sponsor was registered with the Department of Human Services as being in a de facto relationship with the applicant’s cousin. The address of the sponsor at that time was registered as the same address as the applicant’s cousin and this was also the address the sponsor had listed on his Incoming Passenger Card after travelling overseas during this time.
The delegate stated that the information that is on the Department file indicates that the declarations made by the applicant in her application for a partner visa (subclass 820/801) was false and misleading in a material particular as the statements are relevant to the assessment of the relationship criteria for the purposes of subclauses 820.211(6)(d) and 820.221(1)(a).
Clause 801.226 requires the applicant to satisfy PIC 4020 and PIC 4021. Therefore the delegate found that the information provided at the time of application by the applicant was false and misleading in a material particular in relation to the application for a partner resident visa (subclass 801).
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.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
On 29 July 2021 the Minister’s delegate refused the application for a partner visa (subclass 801). On 14 August 2021 the Tribunal received an application for review of the delegate’s decision. At the time of this decision the applicant has provided no new evidence regarding the parties’ claimed relationship, nor the requirements of PIC 4020.
On 23 April 2024 the Tribunal wrote to the applicant, via her representative as well as directly to the applicant, pursuant to s 359(2) of the Act, inviting her to provide information in support of her claimed relationship with her sponsor. The Tribunal advised that the information should be provided by 7 May 2024; if the information was not provided by this date the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
No information was received by the applicant by 7 May 2024. On 13 May 2024 the Tribunal again wrote to the applicant, via her representative as well as directly to the applicant, advising that the Presiding Member had agreed to defer making a decision until 20 May 2024. The applicant was advised to provide relevant information in writing by 20 May 2024. No information was received by the applicant by 20 May 2024.
In considering whether the requirements of PIC 4020(1) should be waived, the Tribunal considers that, as no information has been received from the applicant, the requirements should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 801.226.
DECISION
The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.
Cheryl Cartwright
Member
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 Tribunal during the review of a Part 5 reviewable 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 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.
…

[2024] AATA 2438

27 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice