Xiao (Migration)

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.