De facto relationships & PIC 4020

Federal Court: does the question "has the applicant been in any previous relationships" in a partner visa application form refer to relationships in general or only to married or de facto relationships? Can decision-makers assume the existence of a previous de facto relationship even if s 5CB is not satisfied? In determining whether information is false, does it matter that, at the time the information was provided, the FCCA had interpreted s 5CB in a way that was subsequently rejected by the FCA?

Summary and discussion

The Appellant had casual encounters with a woman that resulted in the birth of 2 children over a period of 3 years.

The Appellant then applied for a partner visa and answered the question "[h]as the applicant been in any previous relationships with persons other than the sponsor?” in the negative.

The Minister received information from a third-party to the effect that the Appellant had previously been in a relationship with that woman and refused the visa application on the basis of a finding that the Appellant had provided false or misleading information in a material particular by answering the above question in the negative (PIC 4020).

The Appellant applied to the AAT for merits review of the Minister's decision. The AAT asked itself whether the Appellant had previously been in a de facto relationship and found that the Appellant had provided false or misleading information in a material particular, thus affirming the Minister's decision.

The Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the AAT's decision and that application was dismissed. The Appellant eventually appealed the FCCA's decision to the Federal Court (FCA).

Although not frame this way, this appeal involved 4 important questions:

  • Question 1: does the question "has the applicant been in any previous relationships" contained in the partner visa application form refer to relationships in general or only to married or de facto relationships?
  • Question 2: if that question refers to relationships in general, was it a material error in the sense of Hossain for the AAT to have asked about the existence of previous de facto relationships?
  • Question 3: can administrative decision-makers assume the existence of a previous de facto relationship even if s 5CB is not satisfied?
  • Question 4: If a person provides information about whether they have previously been in a de facto relationship and a decision maker is trying to determine whether that information is false or misleading, does it matter that, at the time the information was given, the FCCA interpreted s 5CB in a way that was subsequently rejected by the FCA?

The FCA answered those questions as follows ...

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