Wu (Migration)

[2018] AATA 1484

Wu (Migration) [2018] AATA 1484 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaohua Wu

CASE NUMBER:  1602840

DIBP REFERENCE(S):  CLF2013/2260 CLF2016/125

MEMBER:Kira Raif

DATE:28 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 28 March 2018 at 7:53am

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Whether the applicant has given false or misleading information – Significant inconsistencies in evidence – Implausible explanation for adverse information – False information given – Whether the requirements of PIC 4020(1) should be waived – Lack of compelling or compassionate circumstances – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15A, Schedule 2, 801.226, Schedule 4, PIC 4020

CASES
Trivedi v MIBP [2014] FCAFC 42
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 February 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of China born in January 1968. She applied for the visa on 28 December 2012. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.801.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion (PIC) 4020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. 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 by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. 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).

6. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5).

7. 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.

8. 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.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in April 2015 a DIBP officer conducted a site visit at the applicant’s stated address in Girrawheen. Mr Yow Choy Lum was located at the property with items belonging to a woman with the applicant’s name. Mr Lum stated that the applicant was his girlfriend who lived with him and that she was in China at the time. The applicant was interviewed in November 2015 and stated that she did not know Mr Lum but agreed that she was in China in April 2015. The applicant also stated that she did not work. In her subsequent statutory declaration the applicant stated that she lived with the sponsor in Geraldton and that she was a housewife.

10. According to the primary decision record, the publicly available social media records indicate that the applicant and Yow Choy Lum are friends. Further, Mr Lum is recorded to have stated in his interview with the Department staff in April 2015 that the applicant was his girlfriend and living with him. The primary decision record indicates that during the site visit, some clothes, bags and documents in the applicant’s name were located at Mr Lum’s place of residence.

11. The delegate wrote to the applicant in January 2016 seeking her comments on adverse information. In her written response to the delegate the applicant provided a number of documents evidencing her relationship with the sponsor. In her submission dated 1 February 2016 the applicant states that she lived with the sponsor in Geraldton but was able to secure a job in Perth and with her husband’s support, she moved to Perth but returned to Geraldton on weekends.

12. The applicant states that she met Mr Lum in August 2014 through a friend and only knew him by the name of ‘Chai’. She confirmed the same in oral evidence to the Tribunal. The applicant claims Mr Lum gave her his social media contact details because he promised to help her buy a car and she also referred clients to him for his taxi service. The applicant claims she kept regular contact on the phone or social media with Chai regarding her car but it was only a business relationship and never personal and he never disclosed his full name or other personal details to her and she believed he had a girlfriend. The applicant claims that in March 2015 when she travelled to China, Chai suggested she would leave her car and vehicle registration papers with him in case he could find a buyer and could sell the car on her behalf, so she left the car and paperwork at his house before going to China. She left a small suitcase with clothing in the boot of her car and Chai put it away from the car and later she asked him to give it to charity. The applicant states that when interviewed, she claimed she did not know Yow Choy Lum because she never knew his full name and he never disclosed the full name to her. The applicant repeated these claims in her oral and written submissions to the Tribunal.

13. The Tribunal does not accept that explanation. Firstly, the primary decision record indicates that the applicant and Mr Lum were friends on Facebook and Mr Lum’s Facebook account contains his full name. Secondly, if the applicant instructed Mr Lum to sell her car on her behalf while she was in China, that would have required legal paperwork to enable him to do that, for example a power of attorney or other formal papers allowing Mr Lum to sell a car which did not belong to him. The Tribunal does not accept that any such formal paperwork would not have contained Mr Lum’s full name. The applicant told the Tribunal in oral evidence and post-hearing submission that they did attend some office to arrange the paperwork but her English was poor but even so, the applicant would have been required to sign papers which would have shown Mr Lum’s full name. The Tribunal does not accept that having met in August 2014, having befriended each other on social media, and having instructed Mr Lum to sell her car in March 2015, the applicant was unaware of his full name by the time of her interview in November 2015. Further, given that the applicant and the sponsor claim to communicate in English, and the applicant’s employment, the Tribunal does not accept that the applicant’s English was so poor that she was incapable of reading Mr Lum’s full name on the papers, even if she ‘did not pay attention’ to it as she claims. In the Tribunal’s view, a much more plausible explanation is that the applicant was deliberately misleading in her interview with the Department officer by minimising the nature and the level of her contact with Mr Lum so as not to jeopardise her visa.

14. The Tribunal is also mindful that according to the primary decision record, not only the applicant’s clothes, but also documents in the applicant’s name were located at Mr Lum’s premises at the time of the site visit. While the applicant claims she planned to dispose of the clothes (and it is unclear why she would leave these in a car she planned to sell), the explanation cannot apply in relation to the documents in the applicant’s name. There is no reason why the documentation in the applicant’s name should be found at Mr Lum’s home or given up for sale by the applicant. Again, the Tribunal has formed the view that the applicant’s explanation has been less than truthful.

15. The applicant denies in her submission to the delegate that she was the girlfriend of Mr Lum. The applicant claims that Mr Lum had lied when he claimed she was his girlfriend. The applicant suggested that because Mr Lum was an unlawful non-citizen, he would think of any excuse to avoid apprehension or prosecution and the same explanation was offered by the sponsor in oral evidence. With respect, the Tribunal finds that explanation nonsensical, since the applicant was not the holder of a permanent visa and not an Australian citizen, so Mr Lum’s relationship with the applicant could not assist him in any way with his unlawful status. He had nothing to gain by claiming the applicant was his girlfriend and the Tribunal does not accept the applicant’s claim that he lied simply because of his visa status. In oral evidence the review applicant said that she could not explain why Mr Lum would identify her as a girlfriend and said that maybe he meant a ‘female friend’. However, the Tribunal is of the view that reference to a ‘girlfriend’ is quite different to a reference to a ‘female friend’.

16. The Tribunal acknowledges the applicant’s submission that she was already in a relationship with the sponsor and believed Mr Lum to have a girlfriend but the combination of the factors identified above – that the applicant and Mr Lum represent themselves as friends on Facebook, that the applicant’s personal belongings including personal documents were found at Mr Lum’s address and Mr Lum’s identification of the applicant as girlfriend while the applicant had denied any knowledge of him contrary to the available evidence – all suggest that it was the applicant who was untruthful of her representation of the situation.

17. The Tribunal also notes that there were some inconsistencies in the applicant’s evidence which the Tribunal considers to be relevant to the assessment of her credibility. For example,

    a.In her written statement to the delegate dated 1 February 2016 the applicant states that even though she took a job away from her husband, she took the bus between Perth and Geraldton on weekends or whenever possible. This suggests weekly contact between the applicant and her husband. However her oral evidence to the Tribunal is that they were seeing each other monthly when either she would visit her husband or he would visit her. In her post-hearing submission the applicant suggests that she could not recall the precise number of times they saw each other but that evidence was not required. The issue was not how many times the parties saw each other but how frequently they did that and whether it was weekly or monthly should have been easily ascertainable.

    b.In oral evidence the applicant said that Mr Lum was living close to her place of work and because her employer asked her to take her things off the premises, it was more convenient to leave her things with Mr Lum. The applicant told the Tribunal that she left a small suitcase with her clothing for Mr Lum to hold until she returned to China. The applicant expressly confirmed in her oral evidence to the Tribunal that she expected Mr Lum to hold her belongings until her return from China. This explanation is inconsistent with the explanation she gave in her written statement to the Department dated 1 February 2016 when she claims she left the things to Mr Lum and asked him to dispose of them by sending to the local charity.

    Further, the Tribunal considers it implausible that if the applicant left some clothes with Mr Lum in a suitcase to hold or dispose of, Mr Lum would then keep the clothing in a way that was clearly visible to the Department’s officers.

18. The Tribunal acknowledges that these matters may not be significant but in the Tribunal’s view, these show that the applicant is not being truthful in her evidence and that she has fabricated the information about the nature of her relationship with Mr Lum.

19. The Tribunal finds the applicant’s explanations unconvincing and the Tribunal is not satisfied that the applicant had a purely business relationship with Mr Lum and not a personal one. The Tribunal does not accept the applicant’s explanation that she never knew Mr Lum’s full name, particularly given their seemingly significant interactions when buying and selling a car, the applicant entrusting Mr Lum to sell her car on her behalf and their apparent interactions on Facebook. The Tribunal has formed the view that the applicant knew Mr Lum and deliberately misled the Immigration officer during the interview by claiming she did not know that person.

20. In her post-hearing submission the applicant also refers to her nervousness during the Tribunal hearing and the fact that she was asked ‘irrelevant’ questions. With respect to the applicant’s representative, it is for the Tribunal, in its inquisitorial role, to determine what questions it considers relevant. The questions about the applicant’s drivers license were highly relevant firstly to test her evidence about giving the car to Mr Lum for sale and, secondly, to check the applicant’s residential addresses and to confirm her cohabitation with the sponsor. The fact that the applicant claims she was unprepared for such questions should not affect the veracity of her evidence.

21. In her submission to the Tribunal of 26 March 2018 the applicant claims that due to her nervousness and unpreparedness to answer ‘irrelevant questions’, the answers she gave were not intended to be false and misleading. The Tribunal notes that for the reasons set out in this decision, the information giving rise to PIC 4020 relates to the information the applicant gave to the delegate and not her answers to the Tribunal.

22. The applicant provided to the Tribunal a number of documents evidencing her relationship with the sponsor and additional evidence has been provided in her submission of 26 March 2018. The Tribunal is of the view, however, that it is possible to obtain such documents whether or not the parties are in a genuine relationship and such documents do not necessarily establish the existence of a genuine relationship between the applicant and the sponsor. In her submission to the Tribunal the applicant claims they did not declare the sponsor’s relationship to Centrelink because the sponsor’s last contact with Centrelink was before the relationship started. The Tribunal is mindful that if the sponsor was relying on Centrelink payments, he may have been under an obligation to inform Centrelink of the changes in his circumstances. Ultimately, it is not necessary for the purpose of establishing compliance with PIC 4020(1) to determine whether or not the applicant was in a genuine relationship with the sponsor because the issue here is the applicant’s evidence given at the interview.

23. The Tribunal finds that in her interview in November 2015 the applicant claimed she did not know Mr Lum. The Tribunal finds, on the applicant’s own evidence, that the applicant did know him from April 2014 and the information she gave during the interview was false or misleading. The Tribunal has formed the view that the applicant was deliberately misleading in relation to her evidence concerning Mr Lum when she was interviewed  but even if that was not the case, the Tribunal is mindful that PIC4020(1) applies whether or not the information was provided by the applicant knowingly or unwittingly. The applicant’s knowledge of Mr Lum was relevant in determining the nature of the applicant’s relationship with Mr Lum and the existence of any interactions with Mr Lum. That was relevant to determining whether the applicant was the spouse of the sponsor and whether their relationship was to the exclusion of all others as required by cl. 820.211 and cl. 820.221. The Tribunal finds that the information was false or misleading in a material particular.

24. Further, the applicant confirmed in her oral evidence to the Tribunal that she started working before her interview in November 2015. The applicant is recorded as having informed the interviewing officer that she was not employed. The Tribunal finds that the information the applicant gave about her employment was false or misleading. That information was relevant in assessing the couple’s financial circumstances for the purpose of r. 1.15A and the Tribunal finds that the information was false or misleading in a material particular.

25. The applicant told the Tribunal that she was confused when she was speaking to the Immigration officer and her English is poor. The Tribunal does not accept these were reasons for the provision of false or misleading information. Rather, the Tribunal is of the view that the applicant had a much closer relationship with Mr Lum that she now suggests existed and that she deliberately tried to mislead Immigration about the nature of that relationship. Again, the Tribunal finds that the provision of untruthful information was done knowingly and deliberately.

26. The Tribunal finds that there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister or an officer, ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5) in relation to the visa application. The Tribunal finds that the applicant does not meet PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

27. 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 r.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.

1. 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.

2. The applicant’s oral evidence to the Tribunal is that she does not want to be separated from her husband, now that they are finally together. The applicant told the Tribunal that her husband gave up his job in November 2017 and they now live together. It appears to be a recent occurrence and the applicant’s evidence is for many years prior, the couple saw each other sporadically, whenever they had time. The applicant initially told the Tribunal that they saw each other maybe once a month and subsequently said that they spent more than half of their time together. The Tribunal is not convinced that the applicant has been truthful about the nature of her contact with the sponsor, at least before they moved in together in late 2017. The Tribunal also does not accept the applicant’s evidence that they could not find employment in the same city. The applicant works in a massage parlour and her evidence is that the sponsor works in a factory loading and unloading goods. These skills are transferrable and the Tribunal does not accept that they could not find employment in the same city over the five years of their marriage. The Tribunal notes that the applicant presented no evidence of her or the sponsor looking for employment or being unable to find employment. The Tribunal has formed the view that the applicant’s and sponsor’s decision to live separately was a matter of choice, rather than necessity and in such circumstances, the Tribunal does not consider that any separation of the applicant and the sponsor would constitute a compassionate or compelling circumstance.

3. Similarly, the applicant and the sponsor spoke about their relationship and provided documentary evidence of the relationship. The Tribunal acknowledges the evidence but has considerable concerns about the genuine and exclusive nature of this relationship, given the Tribunal’s concerns identified above about the applicant’s interactions with Mr Lum. In the particular circumstances of this case, the Tribunal does not consider that the existence of a genuine relationship between the applicant and the sponsor, even if one was found to exist, would constitute a compelling or compassionate circumstance affecting the sponsor. This is because the couple spent most of their time since marriage living separately and away from each other and the Tribunal is not convinced they have made adequate effort to be together and to establish joint residence.

4. In her submission to the Tribunal the applicant claims that forcing the applicant to leave Australia will put financial pressure on the sponsor. The applicant refers to the cost of living and the couple’s debts and the sponsor’s unstable employment. The Tribunal considers the presented evidence inadequate. While the Tribunal accepts that the couple need to pay the various expenses and the Tribunal is prepared to accept that the applicant may contribute to such expenses, the applicant has not satisfied the Tribunal that these arrangements cannot continue whether or not the applicant maintains her Partner visa. Even if the applicant was required to leave the country, there is no reason why she could not obtain gainful employment in her home country and continue to support the sponsor, if she does so now. There is little evidence on whether the couple may have access to other funds, including borrowing from friends or family or arranging a loan. The Tribunal is not satisfied in such circumstances that financial hardship would be caused to the sponsor unless the waiver is applied. The Tribunal is not satisfied this is a compassionate or a compelling circumstance affecting an Australian citizen or permanent resident.

5. In her submission to the Tribunal of 26 March 2018 the applicant also refers to the sponsor’s poor health, including coughing and liver problems. The applicant states that after living together the sponsor relies on the applicant for emotional support and has ‘reduced the use of such vices but the sponsor’s stress levels would be easily triggered by the financial burden of the applicant’s departure. The applicant claims that the sponsor has been motivated by her and became more extraverted and her departure from Australia would cause detrimental effect on the sponsor, including emotional distress.

6. The Tribunal finds that submission unconvincing, given that the applicant made no mention whatsoever of the sponsor’s health when questioned about the waiver in the course of the hearing. The Tribunal notes that PIC 4020 was the sole reason her application was refused. The applicant would be well aware of the basis for refusal and the legislative provisions relevant to it, which were set out in the delegate’s decision. The applicant was represented throughout the review by a registered migration agent and for that reason also would be aware of the statutory requirements relating to her case, including the waiver provision of PIC 4020. The applicant had ample time and opportunity to mention any circumstances she considered justified the waiver. Yet, the applicant made no mention of the sponsor’s health until her post-hearing submission. Indeed, it seems to be a recent invention.

7. The Tribunal is mindful that the applicant presented no medical or otherwise probative evidence to support her assertion that her departure from Australia or her separation from the sponsor would be detrimental to his health. There are statements from friends regarding the sponsor’s personality but no medical evidence to support the applicant’s contention that the sponsor’s health is poor or would deteriorate without her presence. In the Tribunal’s view, if such claims were true, such evidence should be readily available to the applicant. In the absence of probative independent evidence, the Tribunal does not accept the applicant’s contention that the sponsor’s health and well-being would be adversely affected if she was required to leave the country.

8. The Tribunal is also mindful that until recently, the parties had been living in different cities and had been seeing each other from time to time. If the applicant claims that her emotional support has changed the sponsor and improved his health, then at least some, if not all, of such support would have been provided when the parties were not living in the same household. There is no obvious reason why the same arrangement cannot continue whether or not the applicant lives in Australia. If she was required to leave the country, the applicant and the sponsor would be able to continue with their communication and can communicate electronically as frequently as they wish. The applicant can continue to provide the emotional support to the sponsor that she claims to have been providing to date. For that reason also, the Tribunal does not accept that the sponsor would be adversely affected as a result of the applicant’s departure from Australia. The Tribunal does not consider that these circumstances are compassionate or compelling circumstances affecting the sponsor.

9. The applicant has not presented any other compassionate or compelling circumstances. The Tribunal is not satisfied there are compelling circumstances that affect the interests of Australia. On the evidence before it, the Tribunal is not satisfied there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the grant of the visa. The Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived.

   Conclusion

10. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.801.226.

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Kira Raif
    Senior Member