Yuan (Migration)

[2021] AATA 816

Yuan (Migration) [2021] AATA 816 (23 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wenqian Yuan

CASE NUMBER:  2007108

DIBP REFERENCE(S):  BCC2014/1484471

MEMBER:Kira Raif

DATE:23 February 2021

PLACE OF DECISION:  Sydney

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 23 February 2021 at 10:28am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 830 (Spouse) – Federal Circuit Court remittal – bogus document or false or misleading information – birth certificate names husband/sponsor as father of child but DNA test excludes him – biological child of wife/applicant’s former husband – compassionate or compelling circumstances affecting Australian citizen child – child holds Australian citizenship only because of sponsor’s claimed parentage – no assessment of spousal relationship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(c), 65
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 May 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in January 1986. The applicant applied for the visa on 17 June 2014. 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 (the Regulations) because the applicant did not meet Public Interest Criterion (PIC) 4020. The applicant sought review of the delegate’s decision. In October 2018 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review and the matter was remitted to the Tribunal for reconsideration.

3. The applicant appeared before the Tribunal on 23 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yang, 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 matter should be remitted for reconsideration.

   Relevant law

4. 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).

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) and the term ‘bogus document’ is defined in s.5(1) of the Act. 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.

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 review applicant provided to the Tribunal a copy of the primary decision record. It indicates that when making the application, she claimed that the sponsor was the biological father of her daughter Ariel. The delegate requested that  a DNA test be done to confirm the child’s paternity and that test has shown that the sponsor is excluded from being the biological father to the child.

10. The applicant and sponsor explained in their evidence to the delegate that they were unaware of this and were ‘shocked’ by the results of the DNA test. The applicant states that she was ‘forced’ to have a relationship with her former husband but did not tell the sponsor about it initially. The applicant states that the sponsor treats the child as his own. In oral evidence the applicant explained that she and the sponsor lived ‘normally’ and so when she fell pregnant, she assumed her husband was the father of the child and they were surprised by the results of the DNA test. The applicant states that at first her husband did not accept the DNA results but he now treats the child as his own.

11. The Tribunal finds that the applicant produced to the delegate the birth certificate for Ariel Yang which identifies her as the mother and Mr Jin Hu Yang (the sponsor) as the father. The Tribunal finds, having regard to the DNA test results, that the sponsor is not the biological father of the child. The Tribunal reasonably suspects that the birth certificate is a bogus document because it was obtained on the basis of a false or misleading statement, within the meaning of s. 5(c).  

12. The Tribunal acknowledges the applicant’s claims she was not aware of the child’s true paternity and genuinely believed the sponsor to be the father. In her submission to the Tribunal, the applicant outlines the circumstances in which the child was conceived and states that the submission of false or misleading information was a genuine mistake. Contrary to the applicant’s submission, the Tribunal does not consider that Trivedi requires an assessment of the applicant’s state of mind. It is well established that PIC 4020 will engage where there was an element of deception rather than a mere mistake and in this case, the Tribunal does not accept there was a simple mistake when claiming the child’s paternity. The Tribunal is of the view that, given what the applicant claims has happened between her and her former spouse (and the Tribunal has not assessed the veracity of these claims), the applicant would have been cognisant of the possibility that the sponsor was not the biological father of the child. It is not necessary for the Tribunal to establish that the applicant was actively engaged in the fraud. 

13. Significantly, the Tribunal has formed the view that the applicant had given a bogus document, being the child’s birth certificate. Section 5(1)(c) defines the document as bogus whether or not the false or misleading statement (about the child’s paternity) was made knowingly. Thus, it is not necessary to determine that the applicant gave false or misleading statement to the registration authorities knowingly. She did provide the statement that the sponsor is the father of the child and that statement was false. That renders the birth certificate a bogus document.

14. The Tribunal finds there is evidence that the applicant has given, or caused to be given, to the Minister or an officer, a ‘bogus document’, as defined in s.5(1)(c) of the Act. The Tribunal finds that the applicant does not meet PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

15. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 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(2AA). 

16. There is no evidence that the applicant or any member of the family unit have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1). Therefore, PIC 4020(2) does not apply.

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

17. 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.

18. 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.

19. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

20. The applicant refers to a genuine relationship she has with her spouse and she provided to the Tribunal a number of documents concerning various aspects of the relationship including the recent purchase of a property. The applicant outlines the social activities that she and her husband engage in and the domestic responsibilities they share. The applicant refers to the provision of emotional support. The Tribunal has concerns about the nature of the applicant’s relationship with the sponsor, in particular in light of the circumstances leading to the birth of the child and the provision of a bogus document which, in the Tribunal’s view, reflects poorly on the applicant’s credibility. However, it is not necessary for this Tribunal to assess the applicant’s relationship for the purpose of this review.

21. The applicant’s daughter Ariel, is an Australian citizen. The Tribunal is mindful that she may not have been entitled to Australian citizenship as neither of her parents was an Australian citizen or permanent resident at the time of birth and it is possible that the citizenship was obtained by deception if the sponsor was declared as the child’s father. Nevertheless, at the time of this decision, there is no evidence that the citizenship has been revoked or that  there are steps to revoke the child’s citizenship. Thus, at present, the child remains an Australian citizen. The Tribunal acknowledges that the child is a minor and is cared for by the applicant, as well as the sponsor. If the waiver is not applied, the applicant may not be eligible for the visa and that may result in the child being separated from her mother, or the child being required to leave Australia with her mother.

22. The applicant stated that her daughter started school and is happy at school. Education in Australia is very different to the education in China and her daughter would be under too much pressure if she had to change that environment. The applicant states that her daughter’s education would be disrupted if she had to leave Australia. The applicant refers to her husband’s job in Australia and states that it would cause financial and emotional hardship if they had to relocate to China. The applicant states that they are ready to “get on” with their future and it would cause too much disruption if she cannot obtain the visa. 

23. The Tribunal accepts that the child was born and brought up in Australia and may be used to the Australian way of life, as well as Australian schooling. The Tribunal accepts that the child has formed relationships with family in Australia. The Tribunal accepts that some hardship may be caused if the child was to relocate to China permanently or on a long term basis, given the child’s connections in Australia. Given the child’s young age and her dependence on her mother, as well as the fact that  she has lived her entire life in Australia, the Tribunal is of the view that there are compassionate circumstances affecting the interests of an Australian citizen child. 

24. The Tribunal finds that there are compassionate circumstances affecting the interests of an Australian citizen. Therefore, the requirements of PIC 4020(1) should be waived.

    Has the applicant satisfied the identity requirements?

25. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There is no evidence that the applicant’s identity is at issue. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

26. PIC 4020(2B) requires that neither the applicant nor any family unit member have 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).

27. There is no basis that the applicant had previously been refused a visa on the basis of a failure to satisfy PIC 4020. Therefore PIC 4020(2B) does not apply.

28. As noted above, the Tribunal has considerable concerns about the exclusive nature of the applicant’s relationship with the sponsor, given the birth of the child and the applicant’s former spouse being the child’s biological father. The applicant informed the Tribunal that she has no plans to reconcile with her former husband and of sponsoring him for a visa. Given the provision of false or misleading claims about the paternity of the child, and the provision of a bogus document, it appears that the applicant is not a person of credibility and that may also be relevant to the assessment of the applicant’s relationship with the sponsor. However, the Tribunal has not assessed that relationship against the statutory criteria, as the delegate has not done so.

    Conclusion

29. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.820.226.

    DECISION

30. 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.

    Kira Raif
    Senior Member