Australian Immigration Daily News

It is often assumed that PIC 4020 is the “kiss of death” for a visa application.

And that if an applicant submits a “bogus document” in support of a visa application, that PIC 4020 will be “enlivened”, and that it will effectively be “game over” for the applicant.

And that in order to have any hope of getting PIC 4020 “waived” that one must put before the Department or the Tribunal strong evidence to show that either compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen justify the grant of the visa”.   And in the case of an application for a partner visa, the evidence in support of the request for a waiver of PIC 4020 must “go beyond” a demonstration that the relationship between the applicant and his sponsoring partner is genuine and continuing.

Well, there are always surprises and nuggets of hope to be found in the reports of the decisions of the Federal courts on Austlii.

And just as the case that I discussed on this blog at the end of last week, Sapkota, shows,  PIC 4020 is not always  as deadly as the sting of a blue-ringed octopus. 

There was another case that was decided at the end of last week, Gjecaj v Minister for Immigration & Anor (2016) FCCA 2812 (9 November 2016) that provides another lesson that there is sometimes a way to cure PIC 4020 issues, and they do not always spell doom.

So what happened in the Gjecaj case?

At issue was a partner visa application made by a citizen of Albania. He was sponsored by his wife, whom he had met in Melbourne in February 2011, and had married on Christmas Eve in 2012.

The partner visa application was lodged with the Department in October 2013. At some point in the process, a document that the Department and the Tribunal both considered to be “bogus” was given to the Department in support of the application.  The decision of the Federal Circuit Court (Judge McGuire) does not describe in what respect the document was “bogus”. 

When the Tribunal considered whether PIC 4020 should be waived, it mentioned only two documents that it had considered: written submissions from the applicant’s migration agent, and a report from a psychologist. 

The Tribunal rejected these materials on the basis that they were “self-reporting”.

 One has to wonder why these materials would be “self-reporting”, and even if they were, why that would be a legitimate basis for rejecting them (after all, isn’t what a sponsor tells a psychologist about her mental state and need for assistance and support from her husband relevant to the question of whether PIC 4020 should be waived on the basis of compassionate circumstances?). 

 How on earth is it disqualifying if the evidence of compassionate circumstances comes from the applicant’s sponsor?  Isn’t that the most likely source of such information? Sound like the Tribunal’s “reasoning” here was unreasonable in the Li  sense, as having no :evident and intelligible justification.  The case did no turn on this point,  but one has to wonder about the Tribunal’s rejection of this evidence on the sole basis that it was “self-reporting”.

Whatever!

This is what turned the case in the applicant’s favour: In its decision, the Tribunal stated that “no further information was provided” apart from the submission from the applicant’s migration agent and the  psychologist’s report.

However, the record in the case revealed that as a matter of fact, “further information” had been provided to the Tribunal, in the form of sworn statements from friends of the applicant and his wife.

These statements did not go much farther than to state the views of the witnesses that the relationship between the applicant and the sponsor was genuine and ongoing. Although not stated in the Court’s decision, these statements had apparently originally been filed with the Department in support of the partner visa application.

Before the Federal Circuit Court, the Minister attempted to argue that the two witness statements were irrelevant to the question of whether there were compelling and compassionate circumstances that justified the grant of a waiver of PIC 4020.  It was the Minister’s submission that the Tribunal had not committed jurisdictional error by failing to consider these statements because they did not deal with the sponsor’s current mental health, the nature of the support the applicant provided to the sponsor, or the status of the partiers’ relationship.

It didn’t matter! The Tribunal rejected the Minister’s submissions.

The Court found that the statements were potentially relevant to the question of whether there were compelling or compassionate circumstances.  And therefore, the Tribunal had committed error by failing to consider them,

This case shows yet again that principles of “procedural fairness” “trump” everything.  And that old saw, that jurisdictional error is to be found where the Tribunal fails to have regard to a “relevant consideration” continues to ring true.

Even though at this stage we’re probably all thoroughly tired of any mention of the word “trump”!!!!

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