TRUONG (Migration) - [2024] AATA 680

TRUONG (Migration) [2024] AATA 680 (26 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Thi Kieu Oanh TRUONG
Miss Truong Kieu Thao PHAN
Miss Truong Minh Hieu PHAN
Mr Truong Minh Duc PHAN
REPRESENTATIVE:  Mr David Nguyen
CASE NUMBER:  1900643
HOME AFFAIRS REFERENCE(S):          BCC2016/2408172
MEMBER:Ann Duffield
DATE:26 February 2024
PLACE OF DECISION:  Canberra
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(1) for the purposes of cl 820.226 of Schedule 2 to the Regulations

Statement made on 26 February 2024 at 2:22pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – false or misleading information in a material particular – previous visitor visa application – marital status – separated but still living together – partner visa application – contradictory statements – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.226; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
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 8 January 2019 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 19 July 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 820.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the primary applicant did not meet Public Interest Criterion (PIC) 4020(1). The delegate found that she had given, or caused to be given, information that is false or misleading in a material particular in relation to the visa application and in relation to a visa that the applicant held in the period of 12 months before the application was made.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant is a citizen of China born in June 1967. The three secondary applicants are her children aged 29-21 years who are currently temporary residents in Australia.
The applicant first met her current Husband, Mr Van Dinh Nguyen in December 2014 and committed to a long-term relationship in January 2016 after they had visited each other several times in Australia and Vietnam. They were married on 25 June 2016 in Australia.
In her visitor visa application dated 24 December 2015, the applicant declared that she was visiting her children who were studying in Australia. She also declared that she was married to Mr Phan Minh Kinh, who resided with her in Vietnam, at the time…

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 TRUONG (Migration)

Details

AGLC: TRUONG (Migration) [2024] AATA 680
Case: [2024] AATA 680
Decision Date: 26 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by Ms. Truong, a citizen of China, and her three children. The core of the dispute involved allegations that Ms. Truong had provided false or misleading information in material particulars in previous visa applications, specifically concerning her marital status. This was contrasted with her current application for a partner visa with her husband, Mr. Van Dinh Nguyen.

The Tribunal was required to determine whether Ms. Truong met Public Interest Criterion (PIC) 4020, which mandates that an applicant must not have provided false or misleading information or bogus documents in relation to a visa application or a previous visa held within the preceding 12 months. The Tribunal also had to consider whether Ms. Truong had been refused a visa due to a failure to satisfy PIC 4020 in the past, and whether she satisfied identity requirements. The Tribunal noted that while PIC 4020(1) and (2) could be waived for compelling or compassionate reasons, this waiver did not extend to identity requirements under PIC 4020(2A) and (2B).

The Tribunal reasoned that despite inconsistencies in Ms. Truong's previous statements regarding her marital status, including declarations of being married to Mr. Phan Minh Kinh and providing a marriage certificate and household registration book listing him as her husband, while also stating she was divorced from him, these statements did not ultimately lead to a refusal of a previous visa on the grounds of false or misleading information. The Tribunal found that the definition of "information that is false or misleading in a material particular" under PIC 4020(5) requires the information to be relevant to a criterion for the grant of the visa. Applying this, the Tribunal concluded that Ms. Truong satisfied PIC 4020(1) for the purposes of her current application.

Consequently, the Tribunal remitted the applications for Partner (Temporary) (Class UK) visas for reconsideration, with a direction that the first applicant, Ms. Truong, met the requirements of PIC 4020(1) for the Subclass 820 visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The applicant is a citizen of China born in June 1967. The three secondary applicants are her children aged 29-21 years who are currently temporary residents in Australia. The applicant first met her current Husband, Mr Van Dinh Nguyen in December 2014 and committed to a long-term relationship in January 2016 after they had visited each other several times in Australia and Vietnam. They were married on 25 June 2016 in Australia. In her visitor visa application dated 24 December 2015, the applicant declared that she was visiting her children who were studying in Australia. She also declared that she was married to Mr Phan Minh Kinh, who resided with her in Vietnam, at the time of her application, and provided a copy of her marriage certificate. In a subsequent statement dated 18 December 2018, however, she stated that she and Mr Kinh were divorced on 5 May 2016. Also in the first visitor visa application lodged in May 2015, the applicant provided a copy of a curriculum vitae stating that she resided with Mr Kinh and her three children at the same named address. This CV is dated 6 May 2015. With her second visitor visa application dated 24 December 2015. The applicant also provided copies of her Vietnamese household registration book dated 25 August 2016 which include Mr Phan Minh Kinh as her husband. She lodged the application subject to this review on 19 July 2016. It was refused on 8 January 2019.Vulnerable persons guidelines The Tribunal is mindful that the applicant has declared that she ha suffered serious mental health issues in the past relating to her previous marriage. Reports from mental health professionals also support this and she continues to receive ongoing support.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).

Evidence

Evidence Before The Court

The Tribunal is mindful that the applicant has declared that she ha suffered serious mental health issues in the past relating to her previous marriage. Reports from mental health professionals also support this and she continues to receive ongoing support.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 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.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.

Decision

Reasons for decision

On the basis of the above, the applicant satisfies PIC 4020(1) for the purposes of cl 820.226.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(1) for the purposes of cl 820.226 of Schedule 2 to the Regulations Ann DuffieldSenior MemberATTACHMENTMigration 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 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 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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