Australian Immigration Daily News

Is Public Interest Criterion 4020 valid? 

Does the PIC effectively deprive an applicant of the right to meaningful merits review of an adverse decision by the Department? 

These important questions were addressed in a decision that was handed down by Justice Perry of the Federal Court in the case of Thakur v Minister for Immigration and Border Protection (2016) FCA 473 (5 May 2016). 

The challenge to the validity of PIC 4020 was made in the context of an application for judicial review of a decision by the AAT to affirm the refusal of an application for a 457 visa application. 

In Thakur, the Tribunal had made a finding that the primary applicant for the 457 visa did not satisfy PIC 4020.  The applicant had made her application on the basis of her nomination by a taxi company for the occupation of “Transport Company Manager”.  The applicant’s husband and their daughter had been included in the 457 application as members of the applicant’s family unit. 

Previously, the applicant’s husband had also sought a 457 visa for the exact same occupation at the same taxi company, that of “Transport Company Manager”. The husband’s 457 visa application had been refused by the Department on the basis that he did not satisfy PIC 4020(1), on the basis of either having provided a bogus document or information that was false or misleading in a material particular with his own application.  The husband had sought review of the refusal of his visa application, but the Tribunal had affirmed the Department’s decision in relation to his application. 

As a consequence of what had happened with the husband’s visa application, the subsequent application by his wife was also captured by PIC 4020. 

The relevant provision of the PIC, 4020(2)(b), specifies that the Minister must be satisfied that no member of the applicant’s family unit has been refused a visa due to a failure to satisfy PIC 4020(1) (by reason of providing a bogus document or false or misleading information)  during the 3 year period prior to the time that the  current application was made. 

The applicant claimed in the Federal Court that PIC 4020 is inconsistent with section 349 of the Act (which provides for merits review of Departmental decisions to refuse visa applications) and, for that reason, is “beyond” the regulation-making power that is conferred by section 504 of the Act. 

The argument that was made by the applicant was that in circumstances where PIC 4020(2) is applied to refuse a visa application on the basis that a prior visa application made by a member of the applicant’s family unit was refused due to non-satisfaction of PIC 4020(1), there is only one outcome that is possible before the Tribunal, namely that the refusal of the visa application would necessarily be affirmed. 

It was the applicant’s further argument that the criteria for obtaining a waiver of PIC 4020(2) are so “narrow” that it is difficult to envisage any case in which such a waiver might be obtained.  The criteria for the grant of a waiver of PIC 4020 are  specified in PIC 4020(4) and are that the Minister is satisfied that there are compelling circumstances that affect the interests of Australia, or that there are compassionate and compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that justify the grant of the visa.

Justice Perry did not accept the applicant’s submissions that PIC 4020(2) effectively deprives an applicant of the right to meaningful review for the following reasons: 

1. The original decision to refuse a visa application by another member of the visa applicant’s family unit would itself be subject to a full right of merits review under section 349. So, there is an opportunity for the member of the family unit who has had her/his visa application refused due to the application of PIC 4020 to challenge whether it was correct to refuse the application on that ground (in other words, to contest whether in fact a bogus document or false or misleading information had been provided in support of the family member’s earlier visa application, and if so, to contest whether the PIC should nonetheless be waived). 

2. Secondly, a full right of merits review would be available to the visa applicant whose application is refused on the basis that an application by a member of their family unit was refused due to PIC 4020.  Justice Perry observed that  a visa applicant would be able to seek review as to the following questions: 

a)      Was the decision to refuse the family member’s visa application actually made by reason of that person’s provision of a bogus document or false or misleading information, or was the refusal actually made for some other reason;

b)      Is the visa applicant in fact a member of the family unit of the person whose previous visa application was refused due to a failure to satisfy PIC 4020; and

c)      Whether the Tribunal should be satisfied that circumstances exist warranting the waiver of PIC 4020(2). 

Consequently, Justice Perry concluded that PIC 4020 does not invariably compel the result that if a family member has had a visa application refused within the previous 3 years due to a failure to satisfy PIC 4020, then a subsequent visa application by another member of that family unit must inevitably also be refused. 

Justice Perry also briefly addressed the applicant’s submission that PIC 4020(2) may be “unfair”, particularly in cases where the visa applicant is an innocent party who did not have any involvement in a breach of the PIC by a member of their family unit in relation to a previous visa application.  Her Honour’s response to this submission was simply that even if the PIC does operate “harshly” in certain circumstances, that fact alone does not justify “interference” by the court’s – in other words, intervention to alleviate the harsh result. 

The sum and substance of this case is that Justice Perry confirmed that PIC 4020(2) is a valid regulation.

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