Zhao (Migration) - [2024] ARTA 841

ZHAO (MIGRATION) [2024] ARTA 841 (5 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Shuiyan Zhao
Respondent:  Minister for Home Affairs
Tribunal Number:  2108242

Tribunal:General Member Downes
Place:Brisbane
Date: 5 November 2024
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 visa:
· Public Interest Criterion 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations

General Member T Downes
Statement made on 5 November 2024 at 12:56pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – misleading information in a previous visa application – end date of previous marriage – applicant re-married her ex-spouse then divorced again – applicant coerced to re-marrying – compassionate or compelling circumstances – closure of businesses – loan commitments – emotional and financial hardship – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994, Schedule 2, cl 820.226; Schedule 4, Public Interest Criterion 4020; r 1.03
CASES
Kandel v MIBP [2015] FCCA 2093
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 June 2021 to refuse to grant the visa applicant (the applicant) a Partner (Temporary) (Class UK) Subclass 820 visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 9 January 2020. 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 satisfy public interest criteria 4020 (PIC 4020).
I decided to make this decision without holding a hearing of the proceedings pursuant to
s 106(3) of the Administrative Review Tribunal Act 2024 (Cth) because the decision is wholly in favour of the applicant, and I considered that the issues for determination could be adequately determined in the absence of the parties to the proceeding.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsideration.
ISSUE AND LAW
The issue in this review is whether the applicant meets PIC 4020(1)(a) or (4), as required by cl 820.226 of Schedule 2 to the Regulations for the grant of the visa. PIC 4020 is extracted in the attachment to this decision.
Relevantly, PIC 4020(1)(a) requires that there is no evidence that the applicant has given, or caused to be given, to the Minister, information that is false or misleading in a material particular in relation to the application for the visa. For PIC 4020(1)(a) to be enlivened, an element of fraud or deception by some person is necessary: Trivedi v MIBP [2014] FCAFC 42.
PIC 4020(4) provides that PIC 4020(1)(a) can be waived if 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 in the Act or Regulations. However, the courts have held that 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. The determination of whether circumstances are compelling or compassionate is essentially one of subjective judgement and is a question of fact and degree for the decision maker: Kandel v MIBP [2015] FCCA 2093.
Explanatory Statement to SLI 2011, No 13, which introduced PIC4020, relevantly provides:
The types of circumstances that may involve compelling or compassionate reason for waiving any or all of paragraphs 4020(1)(a) or (b) and subclause 4020(2) include:
*         family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);
*         that family members in Australia would be left without financial or emotional support; and
*         a parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 35-year-old woman from China. She applied for the visa based her relationship with the sponsor, a 27-year-old Australian citizen.
The relevant facts that led to the applicant’s visa refusal are summarised in the delegate’s decision record as follows:
In this application, you declare to be previously divorced in China and provided the following information regarding your previous relationship with your ex-spouse:
·On the application form for migration to Australia by a partner, you declared the date of your previous marriage with your ex-spouse was on 26 February 2015 and the end date of marriage 19 March 2019.
·In the relationship and marriage statement and statutory declaration that was made by you, Shuiyan ZHAO, you state that you broke up with your ex-spouse in 2015 and the relationship was ended with an official divorce in June 2016. You claimed you threw away the divorce certificate and had the divorce certificate renewed in March 2019.
In May 2021, an officer from the Department of Home Affairs conducted verification checks via the telephone with the issuing authority of the divorce certificate, Wuwei City Civil Affairs Bureau. On 10 May 2021, an officer of the Wuwei City Civil Affairs Bureau provided the following information over the phone:
·The divorce certificate provided as part of this application is not a renewed or reissued certificate of the previous divorce between the applicant and her ex-spouse.
·The applicant married her ex-spouse on 25 February 2015 and divorced on 8 March 2017 at Wuwei City Civil Affairs Bureau.
·The applicant re-married her ex-spouse on 25 May 2017 and divorced again on 19 March 2019 at Wuwei City Civil Affairs Bureau.
·No record could be located regarding the divorce which the applicant claimed took place in June 2016 between her and her ex-spouse.
On 11 May 2021 you were provided with the opportunity to provide comment on the suspected false or misleading information, and whether you believed you had claims under PIC 4020(4).
On 4 June 2021 you provided the below information:
·Your first marriage with your ex-spouse had disintegrated since early 2016 due to constant arguing and emotional abuse. You resolved to file for divorce in the middle of 2016. The reason why you stated in your statutory declaration that you divorced in June 2016 is because it was at that time when you began trying to get a divorce. It also allowed you to keep from admitting to the sponsor that you had been married when you first met.
·You attempted to make your ex-spouse sign the divorce document, but he refused because he needed someone to cover his debt and share his loan under Chinese Marriage Law. He did not agree to sign the divorce paper until March 2017, because by then he had a chance to invest in a vegetable project to pay his debt.
·The main reason for hiding your remarriage record from the sponsor is because you did not want it to cause any negative impact on the relationship.
·You were coerced to re-marry your ex-spouse who intended to get more compensation by family headcounts when the government implemented house expropriation. You made a deal with your ex-spouse and his mother that you would forfeit all entitlements to the money you were supposed to have received from government, and in return your ex-spouse would never ‘step’ into your life again. Your ex-spouse’s family received the money in 2019 and you divorced again.
…
You claim that compassionate circumstances exist, namely that you were coerced to re-marrying your ex-spouse and that you chose not to disclose this to the sponsor because you feared it would impact your relationship at that time. Therefore, you concealed this information from the Department in your visa application, as you did not wish to disclose this to your sponsor.
I have considered the statements provided by you and your sponsor, the sponsor’s family, your friend and your family. I note that you have now disclosed this information to the sponsor and his family. I acknowledge that your sponsor, as well as your friends and family, continue to support your partner visa application.
While I accept there may be personal reasons for you to conceal your marriage history from the sponsor and that you claim you only remarried your ex-spouse under coercion, I am not satisfied that this is a compassionate circumstance to waive the requirements of PIC 4020(1).
Before the Tribunal, the applicant has made additional claims in support of the waiver, which are set out elsewhere in this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?
It is not in dispute that the applicant provided information that was false or misleading in a material particular. However, the representative submits that “the misleading information provided was immaterial to the visa criteria and resulted from personal motivations rather than an intent to deceive”.
I do not accept this submission. The false and misleading information related to the circumstances of her second marriage and divorces from her first husband, which overlapped in time with commencement of the applicant and the sponsor’s relationship. For this reason, I find that it related to a material particular and also, that there was an intention to deceive the department. Accordingly, the applicant does not meet PIC4020(1)(a) of Schedule 4 to the Regulations.
Should the requirements of PIC 4020(1) be waived?
The couple has made several claims of compelling and compassionate circumstances to the Tribunal, which can be summarised as follows:
a.If the applicant were required to return to China, the sponsor would move to China to continue their relationship.
b.The couple own and operate two businesses, which they would be unable to run remotely from China in an efficient or effective manner. As a result, they would likely need to close their businesses if they moved offshore.
c.It would be difficult for the sponsor to continue both business if only the applicant were to move offshore. The applicant plays a central role in the management and operation of both businesses.
d.One of the couple’s businesses is a tutoring business, which provides a valuable service to the community including Australian permanent residents and citizens who do not have English as their first language. The business also has a contract with a third-party business. If the couple’s business were to close, the business partner’s business would also suffer, which would be detrimental to the community.
e.It would be difficult for the sponsor to earn a living in China. He could not operate a similar tutoring business in China because of local government policies.
f.The couple have significant joint financial liabilities in Australia. As of 29 October 2024, the couple jointly hold a loan with HSBC in the amount of $245,738.10. It would be difficult for the couple to service the loan if one or both of them were to relocate offshore, given the effect that would have on their businesses, as set out above.
g.It is not just the couple’s ability to subsist that would be affected. The couple also support the sponsor’s mother and brother. Among other things, the sponsor’s mother and brother live with the couple and the couple provides them with financial assistance and emotional support. The sponsor’s brother and mother would face financial hardship and risk homelessness if the applicant and the sponsor were to relocate offshore.
h.The couple have been attempting to conceive a child by IUI and IVF.
i.The sponsor and the sponsor’s mother have had mental health challenges, which would be exacerbated if the applicant and/or the couple were to relocate offshore.
j.The couple are godparents to their friends’ children.
The couple provided a range of evidence to support their claims, including: statutory declarations from themselves, family members, colleagues and customers; medical evidence regarding their fertility treatment; bank documentation; and photographs. No medical evidence was provided regarding the sponsor and the sponsor’s mother’s claimed mental health challenges, however, I accept the claims made in their statutory declarations at face value.
Overall, I am satisfied that the circumstances set out above, when viewed collectively, constitute compassionate and compelling circumstances that affect the interests of Australian citizens, namely the sponsor and his family. The evidence indicates that the applicant and the sponsor own and operate their businesses together and that the couple as well as the sponsor’s family are financially dependent on the success of those businesses, which success could not be maintained if the applicant and/or the couple were required to relocate to China.
I am also satisfied that the requirements of PIC4020(1)(a) should be waived having regard to those circumstances. While PIC 4020 plays an important role in preserving the integrity of Australia’s visa system, I consider that the nature of the applicant’s deceit is on the lower end of seriousness as it was not directly related to the relationship between the applicant and the sponsor. I also note that the applicant did correctly declare the date of her second divorce from her first husband, despite it occurring after the commencement of the couple’s relationship.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 visa:
·Public Interest Criterion 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations
Date(s) of hearing:  N/A
Representative for the Applicant:           Ms Humin Shen (MARN: 1795528)
ATTACHMENT
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 ART 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.