Dharmapuri (Migration) [2019] AATA 4746 (30 August 2019)

Last Updated: 14 November 2019

Dharmapuri (Migration) [2019] AATA 4746 (30 August 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Mr Abhilash Dharmapuri

VISA APPLICANT: Mrs Srilatha Are

CASE NUMBER: 1812364

DIBP REFERENCE(S): BCC2018/123739

MEMBER: Nora Lamont

DATE: 30 August 2019

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

• Public Interest Criterion 4020 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 30 August 2019 at 7:25am

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – previous non-compliance – three year exclusion ban – inaccuracies with paperwork – no misleading information by applicant – separation of family – compassionate and compelling circumstances – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 600.213

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 10 April 2018 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the visa on 9 January 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
3. The review applicant appeared before the Tribunal on 29 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and the visa applicant in India.
4. The review applicant was represented in relation to the review by his registered migration agent.
5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

Application to the Department

6. The visa applicant declare that she wants to visit her husband (the review applicant) in Australia as she is pregnant with their baby and has been apart from her husband almost continuously since their marriage almost four years ago. A marriage certificate, baby scans and doctors letters confirm the applicants are married, the visa applicant is pregnant, and oral evidence also confirms the same.
7. The application was refused because the delegate was concerned about the numerous visa applications lodged form the applicant and the applicant’s previous non-compliance with her skilled 189 visa application. The applicant had this visa refused and refused on PIC 4020 grounds and the applicant had therefore a three year exclusion from Australia. Based on that information the applicant did not meet Public Interest Criterion (PIC) 4020, subclause (2). As a result cl. 600.213 was also not met.
8. The issue in this review is whether the requirements of (PIC 4020)(2) should be waived as required by cl.600.213 for the grant of the visa. 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.

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

9. 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.
10. 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.
11. For the following reasons, the Tribunal is satisfied that the requirements should be waived due to compelling and compassionate reasons.
    • The applicant for the visa is married to an Australian citizen and is pregnant with a baby who when born will also be an Australian citizen.
    • The applicants have been married for almost four years and during this time they have been apart with the review applicant in Australia and the visa applicant in India. Whilst the review applicant travels back and forth to India it has put pressure on his fulltime career employment and the cost of the repeat travel has taken a toll on the applicant.
    • The applicant’s love each other and have been forced apart for their entire marriage.
    • The review applicant has a mortgage, is working full time, supporting his wife in India and travelling back and forth to India on a regular basis causing emotional distress and it has taken a toll on his daily life, causing stress induced illness.
    • The applicants will have a baby in a few months and they will be forced to be separated due to the review applicant’s need to work and provide financial support to his wife and child and maintain his employment in Australia.
    • The emotional toll of being separated has caused the entire family to have stress. The applicant’s father has had high blood pressure and a heart condition and the situation of the applicant’s has only added to his stress and high blood pressure.
    • Overall, there is a negative physical and emotional health impact on an Australian citizen.
12. The Tribunal heard oral evidence around the circumstances related to the skilled visa application and the PIC 4020. The applicant applied for the skilled visa offshore and when compliance went to the location of her employment they had relocated. The applicant told the Tribunal that she was at another location and she provided over 34 documents to the Department in relation to her position, including payslips. The applicant was eligible for a partner visa at the time of the skilled visa application and she could have withdrawn the application however, she continued with the application and provided detailed responses to the delegate.
13. The Tribunal considers that the applicant was forthright in providing additional information to the Department and the Tribunal considers that any inaccuracies in paperwork were due to the poor quality of record and book keeping by the applicant’s employer and were not due to any misleading information by the applicant herself.
14. Given above, the Tribunal is satisfied that there are compassionate and compelling circumstances that affect the interests of an Australian citizen and therefore the requirements of PIC 4020(2) should be waived.

Has the applicant satisfied the identity requirements?

15. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The applicant meets PIC 4020(2A).

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

16. 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).
17. The applicant has not previously been refused on the basis of a failure to satisfy PIC 4020(2A). Therefore PIC 4020(2B) does not apply.
18. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.600.213.
19. The evidence before the Tribunal was sufficiently persuasive combined with the significance of the circumstances underpinning the application that the Tribunal believes given the circumstances, any effort by the Department in expediting this case would be appreciated.

DECISION

20. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:
    • Public Interest Criterion 4020 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Nora Lamont
Member

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 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 1958
s.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.

...