Xiao (Migration) - [2024] AATA 575

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 remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 820.226; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Xiao (Migration)

Details

AGLC: Xiao (Migration) [2024] AATA 575
Case: [2024] AATA 575
Decision Date: 12 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought by the applicant against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The core of the dispute revolved around whether the applicant had provided false or misleading information in a previous partner visa application, thereby potentially failing to meet Public Interest Criterion (PIC) 4020. The decision was made by Cheryl Cartwright, a member of the Tribunal.

The legal issues before the Tribunal were whether the applicant had provided a bogus document or information that was false or misleading in a material particular in relation to her current visa application or a previous visa held within the preceding 12 months, as stipulated by PIC 4020(1). Additionally, the Tribunal had to consider whether the applicant had been refused a visa due to a failure to satisfy PIC 4020(1) within specified periods, as per PIC 4020(2) and (2AA), and whether she satisfied the identity requirements under PIC 4020(2A) and (2B). The Tribunal also had to determine if any of these requirements could be waived under PIC 4020(4) due to compelling or compassionate circumstances.

The Tribunal found that the applicant had indeed provided false information in a prior partner visa application, specifically claiming a genuine spousal relationship with Mr. Demin Yu when the marriage was a sham arranged for visa purposes. This was evidenced by admissions from both parties that Mr. Yu was paid for his participation and that he was falsely registered as the father of two of the applicant's children. However, the Tribunal noted that the applicant's current partner, Mr. Ren, was the biological father of all four of the applicant's children, as confirmed by DNA tests and rectified birth certificates. The Tribunal concluded that, despite the prior false claim, the applicant met PIC 4020 for the purposes of her current application.

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, Subclass 820, for reconsideration. The direction was that the applicant meets the criteria for the visa, specifically Public Interest Criterion 4020 for the purposes of clause 820.226 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 CartwrightMemberATTACHMENTMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a)the application for the visa; or(b)a visa that the applicant held in the period of 12 months before the application was made.(2)The Minister is satisfied that during the period:(a)starting 3 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(2A)The applicant satisfies the Minister as to the applicant’s identity.(2B)The Minister is satisfied that during the period:(a)starting 10 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a)compelling circumstances that affect the interests of Australia; or(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5)In this clause:information that is false or misleading in a material particular means information that is:(a)false or misleading at the time it is given; and(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.…Migration Act 1958s 5 Interpretation(1) In this Act, unless contrary intention appears:…bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a)purports to have been, but was not, issued in respect of the person; or(b)is counterfeit or has been altered by a person who does not have authority to do so; or(c)was obtained because of a false or misleading statement, whether or not made knowingly.…

Ratio Decidendi

Legal Principle Established

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