Vung (Migration)

Vung (Migration) [2021] AATA 3556 (12 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Koi Kion Vung
VISA APPLICANTS:  Mrs Jiemei Zhang
Ms Guangning Wu
Mr Jianmin Wu
CASE NUMBER:  1806658
HOME AFFAIRS REFERENCE(S):          BCC2017/2302432
MEMBER:Rachel Westaway
DATE:12 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:
·Public Interest Criterion 4020(1A) for the purposes of cl 309.225 of Schedule 2 to the Regulations and
·clauses 309.211 and 309.221

The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that Mr Jianmin Wu meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:.
·Clause 309.311 and 309.321 of the Regulations
The Tribunal has no jurisdiction with respect to the secondary applicant, Miss Guangning Wu

Statement made on 12 September 2021 at 11:32pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – false or misleading information in relation to visa application – genuine relationship – conflicting and changing information about how parties met and relationship developed – sponsor’s limited education, mental health and memory issues – interpretation issues – no element of fraud or deception – other information consistent and supports claim of genuine relationship – financial, household and social aspects of relationship – limited time spent together and COVID-related travel restrictions – nature of commitment – legally married – third applicant’s application withdrawn – decision under review remitted for first and second applicants, no jurisdiction for third applicant

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, Schedule 4, criterion 4020(1A), (5)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIMAC [2013] FCCA 933; Kaur v MIBP [2014] FCA 281
Kaur v MIBP [2014] FCA 1276
Singh v MIBP [2014] FCCA 510
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 28 February 2018 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 29 June 2017.
The delegate refused to grant the visas on the basis that the first named applicant, Mr Koi Kion Vung, (the applicant) did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate determined there was false and misleading information in a material particular in relation to the partner visa application being the visa applicant (Mrs Jiemei Zhang), the applicant (Mr Koi Kion Vung) and his elder brother (Mr Francisco Vung) had all made false claims to the Department about how they all knew each other and how the applicant developed a relationship with Mrs Jiemei Zhang to the point of getting married. The delegate also determined the applicant and visa applicant repeatedly changed their version of events throughout the assessment of the partner visa application.
On 22 April 2021 the Tribunal invited the applicant under s.359(2) of the Act to provide written information in response to the delegate’s abovementioned concerns and information addressing the Public Interest Criteria 4020 (PIC 4020) requirements. A response was received within the prescribed timeframe.
The applicant provided the Tribunal with a copy of the delegate’s primary decision record dated 28 February 2018.
The review applicant (Mr Koi Kion Vung) appeared in-person before the Tribunal on Friday 7 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the visa applicant, Mrs Jiemei Zhang.
Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold an in-person hearing, determining it was reasonable to do so by having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. Accordingly, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments in support of his review application.
The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
The review applicant was represented in relation to the review by his registered migration agent, Ms Jenny Chen of Australian Northern Migration & Education Centre.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (1A) as required by cl.309.225 of the Regulations 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 Tribunal is in receipt of a withdrawal form from Miss Guangning Wu and as such it finds it has no jurisdiction to review the secondary applicant’s application.
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.
Visa Refusal Reasons
The delegate refused the application for a partner visa outlining concerns about the genuineness of the relationship because there was conflicting information provided about how they met. For example, in the visa applicant's initial statement, she claimed that her friend introduced the sponsor to her. She claimed that the sponsor is the brother of this friend's boyfriend. The sponsor made confirmed these claims that his brother Francisco introduced the visa applicant to him. He stated that his wife is Francisco's girlfriend's friend in China.
Francisco provided a statutory declaration claiming that he first met the applicant during his trip to visit his girlfriend in 2016 and similar claims were made in a separate visa application lodged on the same date by Francisco's girlfriend. In that application, the sponsor has provided a supporting statutory declaration claiming that his wife is the best friend of Francisco's girlfriend.
However, the account changed when the visa applicant was interview on 5 December 2017. She claimed that she got to know the sponsor's brother Francisco in 2014 as Francisco rented her apartment in Zhapo for a holiday. She claimed that she was not a friend of Francisco's girlfriend and there was no one else involved in introducing the sponsor to her. She claimed that she and Francisco had been keeping in touch since 2014. She claimed that in 2015 she asked Francisco to introduce her to a partner and Francisco introduced the sponsor to her in 2016.
During the sponsor’s telephone interview on the same day his account also changed. He stated that he got to know the applicant through an introducer Lisa, who was previously married to his cousin Mr XIE. He stated that Lisa accompanied him to travel to China on I l November 2016 to meet the applicant for the first time. He stated that Lisa also accompanied his elder brother Francisco to travel to China a month later on 24 December 2016. He stated that he had had no prior contacts with the applicant before physically meeting her. He stated that Francisco did not know the applicant before his trip to China in December 2016. He was able to provide details of Lisa and the Department contacted her and was able to confirm she did travel with the sponsor on Il November 2016 and with Francisco VUNG on 24 December 2016. This information adds authenticity to the sponsor's claims.
Notwithstanding this, the visa applicant and sponsor’s initial account of how they met appeared different to the account taken during the interview.
In addition to this the delegate stated that due to her concerns regarding the credibility of the applicants and their account and also the limited evidence in support of their partner applicant, she found that the relationship was not genuine.
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.
The applicant (Mr Koi Kion Vung) is a 50-year-old male Australian citizen. A copy of his Australian passport valid from 20 August 2008 to 20 August 2018 was provided to the Department of Home Affairs (the Department) as part of the partner visa application.
The visa applicant (Mrs Jiemei Zhang) is a 49-year-old female citizen of China. A copy of her Chinese passport valid from 4 February 2016 to 3 February 2026 was provided to the Department as part of the partner visa application.
Department movement records indicate Mrs Jiemei Zhang is currently offshore but first arrived in Australia on 21 April 2017 on a visitor (FA 600) visa and then departed 8 days later on 29 April 2017.
Department records indicate the secondary applicants (Ms Guanning Wu and Mr Jianmin Wu) are currently offshore having never arrived in Australia with their mother.
Submissions
The following material was provided to the Department supporting the partner visa application:
·Applicant’s Australian passport valid from 20 August 2008 to 20 August 2018
·Applicant’s East Timorese passport valid from 22 August 2016 to 22 August 2026
·Applicant’s Victorian Driver Licence valid until 29 August 2017
·Applicant’s National Police Certificate dared 27 June 2017 indicating no disclosable court outcomes
Statutory Declarations, Statements , Support Letters
·Applicant’s Statutory Declaration dated 8 February 2018 explaining how he met his wife through his brother (Mr Francisco Vung) and unintentionally gave incorrect information to the Department due to memory loss
·Form 1023 Notification of incorrect answer(s) of Mrs Jiemei Zhang dated 4 January 2018 declaring applicant’s brother (Mr Francisco Vung) was the sole person who introduced her to the applicant and no one else was involved in this introduction
·Statement of Mrs Jiemei Zhang dated 4 January 2018 explaining she met the applicant through his brother in September 2016 and incorrect information provided to the Department was due to the applicant’s mental condition resulting in memory loss and a miscommunication between the applicant and migration agent
·Statutory Declaration of Mr Francisco Vung (applicant’s older brother) dated 27 December 2017 explaining he met the visa applicant in China and introduced her to the applicant directly thus Francisco’s girlfriend was not involved in this introduction
·‘Form 888 Statutory Declaration by a supporting witness’ and copy of Australian passport from applicant’s younger brother dated 30 June 2017 declaring how he met Mrs Jiemei Zhang and confirming the couple’s relationship is genuine
·Divorce Statement of Mrs Jiemei Zhang dated 23 June 2017 explaining the circumstances surrounding her divorce to her ex-husband and English translated Agreement of Divorce dated 29 September 2016
·Statement of Mrs Jiemei Zhang to delegate dated 23 June 2017 describing her relationship development with the applicant noting she was introduced to him via her female friend in China
·Applicant’s statement to delegate dated 23 June 2017 describing his relationship development with Mrs Jiemei Zhang noting he was introduced to Mrs Jiemei Zhang through his older brother (Francisco)
·‘Form 888 Statutory Declaration by a supporting witness’ and copy of Australian passport of Mr Francisco Vung dated 22 June 2017 declaring Mrs Jiemei Zhang is his girlfriend’s friend thus introduced the couple to each other who are deeply in love
·Form 40SP sponsoring partner to migrate to Australia signed by applicant on 21 June 2017
Medical documentation
·Referral letter from Dr Thompson & Associates Surgery to a Psychiatrist dated 19 January 2018 about applicant’s medical condition
·Referral letter from Clayton Road Doctors to a Psychologist in Dandenong dated [5] January 2018 as applicant wishes to speak to a Mandarin speaking professional
·Psychologist’s letter dated 10 January 2018 confirming applicant attended a consultation session with her that day
·Referral letter from Stud Road Medical Centre to a Psychologist dated 19 December 2017 about applicant’s memory loss, low mood, anxiety and a sleep disorder thus requests a Psychology mental condition assessment
·Applicant’s Better Access Mental Health Care Plan dated 19 December 2017
Other relevant information and documentation
·Copy of applicant’s undated photographs taken by Australia Post
·Undated stamped envelope addressed from applicant to Mrs Jiemei Zhang in China
·Various undated photographs of couple alone and also with family / friends including photos of the couple’s wedding day
·Various untranslated invoices and receipts dated in 2016
·English translated School Certificate dated 7 December 2016 confirming secondary applicant, Mr Jianmin Wu, is a student
·Copy of China Mobile phone call listings which appears to be dated 18 April 2017
·Mrs Jiemei Zhang’s boarding pass for Brisbane to Melbourne flight on 23 April 2017
·English translated Notarial Certificate and Declaration from Mrs Jiemei Zhang’s ex-husband dated 27 May 2017 declaring his son will settle with his mother in Australia
·Form 1229 consent to grant an Australian visa to an underage child signed by Mrs Jiemei Zhang and her ex-husband on 21 June 2017
·Form 47A Details of dependant child signed by Mrs Jiemei Zhang on 21 June 2017
·English translated Chinese Identify Card of Mrs Jiemei Zhang’s ex husband
·Various English translated Notarial Certificates and Chinese identity cards and passports for Mrs Jiemei Zhang and her children regarding their residential address in China, school studies, birth dates, relationship and marital status and criminal records
The following material was provided to the Tribunal in support of the applicant’s review:
·copy of primary notification letter and decision record from the Department of Home Affairs dated 28 February 2018
·copy of China Mobile phone call listings highlighting Australian mobile number ending in xxx881 which appears to be dated 25 April 2021 in response to our s.359(2) invitation letter
·Doctor’s medical letter dated 5 May 2021 confirming applicant can communicate for the purposes of providing evidence at his Tribunal hearing
The applicant attended a hearing and the following information was provided.
Evidence before Tribunal demonstrating false or misleading information was given in relation to the partner visa application or any visa held in the previous 12 months
The applicant lodged the partner visa application to the Department on 29 June 2017 which was subsequently refused on 28 February 2018.
Accordingly, the ‘relevant period’ is between 29 June 2014 to 28 February 2018.
The Tribunal does not have jurisdiction in respect of the secondary applicant, Ms Guangnin Wu who is currently 26 years old. However, for the sake of completeness she was 22 years old when the partner visa was lodged in 2017 and 23 years old when the partner visa was subsequently refused in 2018.
The other secondary applicant, Master Jianmin Wu is currently 15 years old and was 11 years old when the partner visa application was lodged in 2017 and 12 years old when the partner visa was subsequently refused in 2018. The Tribunal finds that he is a dependant of the applicant.
Department records indicate the applicant, visa applicant and secondary applicants have not been refused a visa because of a failure to satisfy the PIC4020(1) criteria during the relevant period.
Oral evidence taken at hearing
The applicant stated that he was born in East Timor and came to Australia with his sister and brother in 1994. He stated his parents came to Australia but have since passed away.
He confirmed he came as a refugee and was over 30 when he arrived. He advised that his year of birth is 1951. He confirmed he has no children and this is the first marriage.
He does not work and receives government support. He stated that he was previously a trolley collector and he undertook this work for a approximately 18 months and has had no other jobs.
He confirmed he lives with his brother in law who owns the house they live in.
He explained that Donny is 31 years of age and is a Manager at Coles. He also named Peter, Denis and Jennifer and explained that Denis also lives with him. He said the house comprises of 5 bedrooms and 2 living rooms and the family are all aware of his wife. His brother’s name is Francesco and is a Airconditioning Installer.

He stated his memory is affected by age and he is extremely forgetful. He spoke of his wife and the times he has spent with her. He confirmed she lives in China with a daughter and son. Her daughter is 26 and her son is 14. Her daughter works as a cashier at the supermarket.
He explained that he calls his wife ever Thursday. She works in a factory however he stated he could not recall the type of work she did. He explained her hours of work and where the factory is located and was able to explain in general terms her daily routine and that she wears an orange uniform. He explained that they remain in contact with telephone calls, not video or facetime. He stated that she drives to work.
He explained that his wife came to Australia to visit on a tour group for a week. He explained that in 2017 ‘aunty’ took him to see her in China and then in 2018 his brother brought him again. He confirmed that their marriage was arranged.
The Tribunal asked the details of their initial meeting which is the information relevant to the matter under review.
He explained that Francesco arranged the meeting. He then stated that he met her online. He explained that no money exchanged hands. He provided details of their wedding and honeymoon in Macao and where they stayed.
The Tribunal asked the applicant if he had spoken to his wife about Australia and he stated he had not.
He explained that they generally discuss the application and what she will do when she comes. He said that she has said that she will need to get a job and rent a house. He said that his brother will sell the house and down size as children move out.
He confirmed that his wife owns her own house in China. He said that her parents are still alive and her father is in his 70s and her mother is in her 60s and they live close to their daughter.
The Tribunal asked the applicant to explain the discrepancies and contradictions as to how they met. He stated that his brother accompanied him to China on the plane. He stated that a lady named Anna is the applicant’s nephews friend and she introduced him to his wife.
He was asked why he told the Tribunal his brother introduced them and also why he stated that he met her on an online website. He explained that his brother brought him to China to see his wife. This is all. He said he made a mistake when he said this. He explained that his nephew Peter, Francesco’s son introduced him to a friend in Northcote who is 62. Anna had never met Mrs Zhang but they have mutual friends. Anna gave a photo of Mrs Zhang the visa applicant to the sponsor as well as her phone number and over the course of a year they would speak. He said that Lisa also accompanied him to China because she visits pre COVID quite a lot. She did not introduce him but she did take him.
He provided the Tribunal with details of their relationship now and outlined gifts they had sent each other such as jeans and a wallet but confirmed he had not exchanged money over Chinese New Year.
The sponsor outlined his knowledge of his wife’s children and what they did and how they lived. His account was detailed.
The Tribunal took oral evidence from the visa applicant who confirmed she is 50 years old and born in 1971.She lives with daughter and son . Ang Ng 26 and Kim 15.
The Tribunal noted that the sponsor referred to her son as Toby. She explained that this is his Anglo name.
She was able to confirm details pertaining to her employment and home ownership which correlated with the information provided by the sponsor. Such as her working hours and where she lives in relations to her employment and she was also able to confirm what her husband does.
She provided details about who he lives with and his brother’s children.
She confirmed gifts that she had sent him and knew details of her sponsor’s government pension and was consistent in her response to how often they speak and when.
She was also asked to explain how they met, and she stated through her husband’s brother. Again the Tribunal asked why there were so many conflicting accounts. She explained that she had forgotten and was not paying attention when filling in the forms.
She said that she does not know Lisa or Winnie or Anna. She stated she knew her husband’s brother first but does not know his friends in Australia. She said she told Francesco she would like to meet a new husband and he put them in touch.
She said that she wants to live peacefully, and material issues aren’t important.
The Tribunal outlined the inconsistencies again to the applicant and sponsor and the applicant said that there are significant cultural differences between her and her husband and he makes mistakes and therefore is not consistent. He speaks differently and often he does not know what he is speaking about. She stated he is an honest person and she believes he has an illness and is very forgetful.
She stated that she has asked him to get a brain scan.
The Tribunal found it difficult to obtain clear answers from the sponsor regarding the history of how they met. However, the visa applicant’s responses were clear and decisive.
The Tribunal found the sponsor to be limited in his ability to provide oral evidence which was detailed yet what he did provide indicated sufficient knowledge regarding his ongoing relationship with his wife and her situation in China.
The evidence taken at hearing regarding the day to day events and how the couple manage their relationship was provided without concern. The Tribunal holds some concerns about the sponsors memory and these concerns are reinforced in general by medical evidence provided by the sponsor.
Aside from inconsistent information about how they met, all information provided and evidence provided is consistent and supports a genuine relationship.
The Tribunal has turned its mind to what constitutes false or misleading information. PIC 4020 is directed at information which is false, in the sense of purposely untrue, rather than information which lacks the necessary element of fraud or deception (e.g. in the case of an innocent or unintended mistake).[1] While it is not necessary for a visa applicant to know of, or be directly involved in, any falsehood for PIC 4020 to be engaged, there must have been knowledge or intention on somebody’s part.[2]
[1] Trivedi v MIBP (2014) 220 FCR 169 at [32], [54].
[2] Trivedi v MIBP (2014) 220 FCR 169 at [28], [33] and [49].
The Tribunal notes that the sponsor has a limited education and his explanations are quite simplistic. He has very limited experience every holding down employment and medical evidence supplied to the Tribunal indicated that whilst he can attend a hearing, his memory is limited. The key issue resulting in the PIC 4020 was details about how the couple were introduced.
In order to be misleading, the information must convey or contain a misrepresentation. Such a view is consistent with the interpretation of false or misleading representations about goods or services under the Australian Consumer Law.[3] The representation may be about an existing state of facts or a future state of affairs such as in circumstances where an applicant must satisfy a criterion with a prospective aspect.
[3] Kaur v MIMAC [2013] FCCA 933 at [63]. Undisturbed on appeal: Kaur v MIBP [2014] FCA 281.
What constitutes false or misleading information is a question of fact having regard to the circumstances of the case.[4] However it is important to correctly characterise the purported false or misleading information when considering whether PIC 4020 is satisfied.
[4] Kaur v MIMAC [2013] FCCA 933 at [63]. Undisturbed on appeal: Kaur v MIBP [2014] FCA 281.
There is no requirement that the information in question has in fact misled anybody and it may be the case that the information is ‘objectively’ false or misleading.[5] However, an element of fraud or deception by somebody is also necessary in order to attract the operation of PIC 4020.[6] Accordingly, to focus only on whether information is objectively false, without considering whether the information is purposefully false or misleading, would give rise to jurisdictional error.[7]
[5] Kaur v MIMAC [2013] FCCA 933 at [65]. Undisturbed on appeal: Kaur v MIBP [2014] FCA 281. In Singh v MIBP [2014] FCCA 510 the applicant provided a letter of reference to TRA which was found to have erroneously stated that the applicant worked 900 hours. In these circumstances the Court held it was open for Tribunal to find that the applicant did not satisfy cl 4020(1)(a) on the basis the letter of reference submitted to TRA was false and misleading.
[6] Trivedi v MIBP (2014) 220 FCR 169 at [33].
[7] For instance, in Kaur v MIBP [2014] FCA 1276 at [57]–[61], the Court held that the Tribunal erred when it asked whether the information was objectively false or misleading, and did not consider the question of whether the information had the necessary quality of ‘purposeful falsity’ required of PIC 4020.
The Tribunal struggled to obtain clear details and explanations from the sponsor regarding how he met his wife. However it was able to obtain consistent detail and information about all other aspects of their relationship which was discussed albeit it limited because they have been unable to see each other due to COVID, have limited financial means and the sponsor’s memory is declining . In considering the fact that details were provided about how they met which was later contradicted significantly was explained by several facts. The applicants who do not speak English have consistently stated that their initial application was prepared by a migration agent and the information was misinterpreted. They have both stated that over the course of the relationship the sponsor’s memory has declined significantly. Further, the Tribunal notes that the sponsor’s ability to provide oral evidence in detail was limited by both his education and his memory issues.
Furthermore, given the issue of their contradictory explanations of how they met was the issue, the Tribunal is perplexed that would not have both come to the hearing able to provide a consistent response to this question. It remained the one area of inconsistency. Notwithstanding this, the Tribunal does not accept that there was an element of fraud or deception in play. It notes that to focus only on whether information is objectively false, without considering whether the information is purposefully false or misleading, would give rise to jurisdictional error. It is the view of the Tribunal that the information, for the reasons outlined above was not purposefully false or misleading. It was confused due to the reasons outlined above. The parties advised that the sponsor suffers from memory loss as a result of his mental condition. Several referral letters from Doctor’s to Psychologist and Psychiatrist were provided of which the Tribunal has also had regard to.
Therefore, the applicant meets PIC 4020(1).
The Tribunal has now turned its mind to the requirements in accordance with s 5F and regulation 1.15A,.
The financial aspects of the relationship
The Tribunal notes that some receipts in joint names were provided to the department and that the couple were able to discuss and provide consistent information to the Tribunal about their respective financial situations and how they derive an income. The Tribunal is aware that the sponsor is on a government pension and as the couple live separately. It accepts that it is difficult to demonstrate beyond the knowledge of each other’s financial situation, any specific shared assets or finances. I give some weight to the financial aspects of their claimed relationship.
The nature of the household
The applicant and sponsor live separately whilst the visa application is assessed. They were both aware of each other’s living arrangements. They were able to describe each other’s daily routine and who they live with. They spoke of their plans for living together when should the visa be granted.
The couple spent some time together when the visa applicant was in Australia and they first met. Then the sponsor travelled to China twice. Photographs and travel movements support this claim as well as a copy of the applicant's boarding pass on 23 April 2017.
Based on the information and evidence provided, the Tribunal accept that the sponsor has visited the applicant in China twice and the applicant has visited the sponsor once in Australia. The Tribunal notes that COVID has prevented the couple from being able to travel and spend more time with each other. The Tribunal accepts that the parties have had limited opportunities to live together and as such the Tribunal gives little weight to the household aspect of their relationship.
The social aspects of the relationship
The applicant has claimed her friends know of her marriage to the sponsor and during her trip to Australia she also met the sponsor's family. She claims that their respective family and friends are aware of the relationship. Statutory declarations have been provided in support of the relationship by the applicant’s brother whom he lives with and his older sister, Ms PO Su VUNG.
The delegate expressed concerns that whilst she gave weight to the familial recognition of the parties' marriage by Ms PO Su VUNG. She expressed concern that there was no evidence provided to substantiate Ms PO Su VUNG’s claim that she had met the applicant in person. The Tribunal does not share this concern given the limited opportunities due to the short period of time the applicant was in Australia to be able to take photos or obtain any other sort of evidence.
The delegate also expressed concerns that the applicant explained none of her friends attended the wedding because she had no friends. The delegate was concerned about the lack of social recognition. The Tribunal is satisfied with the applicant situation in that she works full time and cares for her two children and was recently divorced and did not want to broadcast her private situation to her friends at work. It also notes that the applicants stated that in their initial interview they were concerned with the interpretation of some words and this may have provided a slightly skewed interpretation of her explanation.
The applicant and sponsor stated that their marriage was arranged and that it was a small affair with 6 tables of guests. The Tribunal accepts that the couple had not known each other well before they married and that they did not share mutual friends. Furthermore, the Tribunal acknowledged that the relationship was, prior to the start of COVID meant to provide and opportunity for them to cement their life together. Their inability to travel has prevented this and the sponsor’s declining memory and health issues has played a further limiting factor in this. The Tribunal accepts that the applicant knew very few invited people to her wedding. Furthermore, whilst she was introduced to family friends at other times, and had photos taken with them, they were people she did not know well and was not married at the time and was unable to recall their names.
Whilst her short one week trip to Australia was dismissed by the delegate, the Tribunal does place some weight on this as evidence that she had met the sponsors family and friends whilst in Australia.
The Tribunal accepts that the couple’s relationship is recognised by the applicant's immediate families. I acknowledge but places limited weight on limited evidence of social recognition beyond the parties' immediate families because of the limited time the couple have spent together of which they have had no control due to COVID travel bans.
Nature of the persons' commitment to each other
In assessing the nature of the parties' commitment to each other, I have considered the duration of their relationship, the length of time during which they have lived together, the degree of companionship and emotional support that they draw from each other and whether if they see the relationship as a long-term one.
The couple have provided a copy of the visa applicant’s divorce certificate and their marriage certificate. Based on the marriage certificate, I accept that the parties were legally married and remain married.
According to the parties' initial personal statements, they were introduced to each other on 25 September 2016, were committed to a relationship within a month on 15 October 2016 and married each other a month later on 16 October 2016.
The Tribunal has some reservations about how the couple met and these reservation were clearly held by the delegate. However, with the passage of time, the couple have been able to demonstrate their ongoing commitment to remaining in weekly contact and being abreast of each other’s life and their families have been able to provided updated supporting evidence to satisfy the Tribunal that the relationship is continuing.
The applicant is aware and concerned about the sponsor’s declining memory issues as observed by the Tribunal.
Whilst the sponsor was not clear about when the applicant was divorced, it became evidence that the sponsor had separated from her former husband some time before the divorce came through and that this was considered a formality. Furthermore, given the sponsors limited ability to remember detail and his incapacity in the tribunal’s view to differentiate between a separation and the formal divorce, it provides some explanation to why he was not aware the divorce had come through only a few months prior to the wedding.
The couple provided evidence of their ongoing communication with each other including phone bills and mail.
The Tribunal accepts the couple remain in contact and their ongoing awareness of each other’s current family circumstances allays concerns that there was limited evidence of communication prior to their wedding.
Overall, the Tribunal considers that the couple have remained in regular contact with each other and are recognised by their family as a couple. The Tribunal accepts that given they live apart and COVID restrictions have prevented travel, that this has been a significant impediment to the couple spending time together and amassing evidence the Tribunal would ordinarily expect.
Furthermore, the sponsor’s limited capacity to remember and articulate detail is supported by medical evidence and referrals to specialists.
Given the many limitations placed on the couple and considering the evidence on hand regarding the couples shared finances, shared household, social recognition as a couple and demonstrated commitment to each other, the Tribunal accepts that the sponsor is the spouse of the visa applicant.
Section 5F Spouse
(I) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (I), persons are in a married relationship if:
(a)    they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)    they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c)    the relationship between them is genuine and continuing; and (d) they:
(i) live together; or
(ii)    do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
DECISION
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:
Public Interest Criterion 4020(1A) for the purposes of cl 309.225 of Schedule 2 to the Regulations and clauses 309.211 and 309.221
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that Mr Jianmin Wu meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:
Clause 309.311 and 309.321 of the Regulations

The Tribunal has no jurisdiction with respect to the secondary applicant, Miss Guangning Wu
Rachel Westaway
Senior 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.
…

[2021] AATA 3556

12 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice