Xiao (Migration)
[2024] AATA 575
•12 March 2024
Xiao (Migration) [2024] AATA 575 (12 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Mengmeng Xiao
REPRESENTATIVE: Ms Carissa Law
CASE NUMBER: 2109697
HOME AFFAIRS REFERENCE(S): BCC2018/4418267
MEMBER:Cheryl Cartwright
DATE:12 March 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·Public Interest Criterion 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations
Statement made on 12 March 2024 at 1:36pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – false or misleading information – false claim of genuine spousal relationship in an earlier partner application – waiver of requirement – ‘high level of willingness’ to provide a substantial number false of documents – Australian citizen children – main breadwinner for the family – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 820.226; Schedule 4, PIC 4020CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42STATEMENT 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 13 July 2021 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 10 October 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 820.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not meet the requirements of Public Interest Criteria (PIC) 4020. The applicant and the sponsor had provided false information in the application.
On 30 July 2021 the Tribunal received an application for review of this decision. While the Tribunal is concerned about the false information that was provided to the Department at the time of application, pursuant to s 360(2)(a) of the Act and based on the material before it, the Tribunal considered that it should decide the review in the applicant’s favour. The Tribunal cancelled the hearing that was scheduled for 6 March 2024.
The applicant was represented in relation to the review.
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 (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.
Background
The sponsor came to Australia in 1988 and applied for a partner visa (subclass 820), being married to Huynh Khank Le, an Australian citizen. The sponsor was granted Australian citizenship on 30 September 1992. The sponsor had three children with Ms Le.
While the sponsor was married to Ms Le, he and the applicant began a relationship. The applicant had a child with him. The child was born on 31 May 2015.
In a statutory declaration dated 11 September 2019, the sponsor states that Ms Le had refused to agree to a divorce but had suggested the applicant enter into a false marriage with Mr Demin Yu. The applicant divorced her first husband, Ran Zhao, and married Mr Yu.
The Tribunal notes that in evidence at the hearing both parties stated that Mr Yu had been paid for his participation in the false visa claim.
Mr Yu was registered as the father of two of the applicant’s four children.
On 28 October 2015 the applicant was granted a partner visa (subclass 820) in relation to her then marriage to an Australian citizen, Mr Yu. She claimed in the application that her relationship with Mr Yu was genuine and he was the father of her child.
While the applicant was married to Mr Yu and before the sponsor was divorced from Ms Le the parties began to live together in the sponsor’s home with his then-wife, Ms Le, and their children. For some of that time, Mr Yu also lived at the house.
In a statutory declaration dated 11 September 2019, the applicant states that she had provided incorrect information and/or documents in relation to her partner visa application lodged on 3 July 2014. She states that she had provided the incorrect information because she wanted to remain in Australia with Mr Ren, the sponsor in this application, but he was unable to be the sponsor at that time as he was still married to Ms Le.
The birth certificates of the children have since been rectified and now list the sponsor, Mr Ren, as the biological father. The parties have provided DNA tests showing that the sponsor is the father of all four of the applicant’s children.
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.
In her application for a partner visa (subclass 820/801) dated 3 July 2014 the applicant falsely claimed that she was in a genuine spousal relationship with Demin Yu, an Australian citizen. At the time of this application, the applicant provided a range of documents purportedly supporting the relationship claim. She had a child and provided false evidence that Mr Yu was its biological father and also submitted a witness statement from her now sponsor, Lang Ren, in support of the earlier application. She later had a second child with Mr Ren and also registered Mr Yu as its father.
During the processing of the applicant’s partner residence (subclass 801) visa, the Department obtained information that the applicant’s relationship with Mr Yu was contrived. After the applicant was advised of this information, she withdrew her application for a partner visa (subclass 801) and lodged a new partner visa (subclass 820) application with Mr Ren listed as the sponsor. In the meantime, the applicant provided the correct information to authorities so that the children’s biological father, Mr Ren, would be correctly listed as their father.
In a statutory declaration dated 3 July 2021, the applicant states that she ‘would like to sincerely apologise’ for providing false information in the earlier partner application. She also states that she will now ‘comply with all Australian migration laws and regulations’.
The applicant has confirmed that she provided false and misleading information in her application for a visa that she held in the 12 months before her application for a partner visa dated 10 October 2018.
The applicant has provided information that is false or misleading in a material particular as defined in PIC 4020(5) in relation to the visa application.
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 satisfied that the requirements should be waived.
Delegate’s decision
In the decision dated 13 July 2021, the delegate noted that the applicant admitted to providing fraudulent information only after the Department undertook an investigation in relation to possibly granting a partner visa (subclass 801).
The delegate found that the parties’ relationship – the applicant’s relationship with her now-sponsor Mr Ren – ‘appears genuine, ongoing and committed’. The delegate also acknowledged that the parties now have four children together who are all Australian citizens, which is evidenced by DNA results.
The delegate noted that both parties were involved in the organisation of the previous, contrived relationship and the application sponsored by Mr Yu and had provided a large number of fraudulently issued supporting documents and statutory declarations, as well as providing false information to Victorian Births Deaths and Marriages authorities.
The delegate found that the parties had ‘displayed a high level of willingness’ to circumvent Australia’s migration legislation and had demonstrated ‘little regard for the integrity’ of Australia’s migration system.
The delegate gave this matter substantial weight and, although the four children who are Australian citizens, would be impacted if the applicant was required to return to China, found that, on balance, the requirements of PIC 4020 should not be waived.
The Tribunal’s view
The Tribunal notes the applicant has shown a level of contrition demonstrated by the statements in her statutory declaration dated 3 July 2021 mentioned above; nevertheless, the Tribunal agrees with the delegate’s concern about the parties’ ‘high level of willingness’ to provide a substantial number false of documents in support of the earlier partner visa application.
The Tribunal also notes the evidence provided by the parties to the hearing in relation to the fraudulent visa application.
In independent and consistent evidence to the hearing the parties stated that the sponsor’s previous wife, Ms Le, had spoken of and demonstrated her tendency towards committing suicide if the sponsor was to leave the country. Ms Le believed that, if she allowed the applicant to live in the house with her and Mr Ren (the sponsor) and their children, the sponsor would remain in Australia. She had believed that, if the applicant had left the country, the sponsor would have left with her.
The sponsor also told the hearing that he had felt gratitude towards Ms Le because he had obtained his Australian permanent residency through his marriage to her.
The Tribunal asked the parties if Demin Yu had been paid for his participation in the fraudulent visa application. The applicant stated that he had been paid 500,000RMB. The sponsor stated that Mr Yu had been paid $80,000. (The Tribunal is unaware of the conversion rate at the time of the fraudulent application, but notes the conversion rate as at 12 March 2024 is approximately $70,000 in United States currency and approximately $100,000 in Australian currency.)
In independent and consistent evidence, the parties told the Tribunal hearing that the sponsor’s previous wife had devised the plan for the applicant to lodge a partner application with Mr Yu because she had a friend who had succeeded in falsely obtaining a partner visa. Ms Le had also provided the funds to pay Mr Yu and the applicant had committed to paying back the money.
The parties currently live together with their four children and the applicant runs the family business, Bolton Fish and Chips in Eltham. The business is open six days per week from midday until approximately 8:00pm. After work, the applicant helps the children with their homework. The sponsor assists in the business during busy periods and there is accommodation at the rear of the business where the children can do their homework or have their dinner. The sponsor is in his 60s and has high blood pressure and diabetes.
The parties told the hearing that the business employs casual labour who provide basic services and who are not involved in managing the business.
The Tribunal notes that, should the applicant return to China she would be able to apply for a partner visa (subclass 309); however, it also notes that during this time the sponsor would not be able to run the business on his own as well as care for all four children. In her statutory declaration dated 3 July 2021, the applicant states that the children, who were all born in Australia, would not return to China with her.
The Tribunal considers that the actions of both parties in providing the false information in the previous partner visa application demonstrates an egregious level of disregard for Australian laws and regulations.
However, given the sponsor and the children are Australian citizens, and the applicant is the main breadwinner for the family, the Tribunal considers there are compassionate and compelling reasons to waive the requirements of PIC 4020(1).
Therefore, the requirements of PIC 4020(1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. A copy of the applicant’s passport is on the Department’s file. Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no evidence before the Tribunal that the applicant or any family unit member has been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A). Therefore PIC 4020(2B) is met.
On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 820.226.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·Public Interest Criterion 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations
Cheryl Cartwright
MemberATTACHMENT
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.
…
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