Australian Immigration Daily News

What type of evidence will support a waiver of Public Interest Criterion 4020?

Suppose a client has given the Department either a “bogus document” or information that is false or misleading in a material particular – how do you go about demonstrating that there are “compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen” that justify the granting of the visa in question?

In other words, how do you overcome the dreaded obstacle of PIC 4020?

And if your client is seeking a Partner visa, but has PIC 4020 issues, then are the close bonds of emotional support that exist between the applicant and the sponsor something that can be relied on as compassionate or compelling circumstances? Or is it the case that since such bonds are the hallmark of every genuine spousal or de facto relationship, that such bonds cannot justify the waiver of PIC 4020 so that a Partner visa application can be granted?

These important questions were all addressed in a decision that was handed down by Judge Manousaridis of the Federal Circuit Court in a decision that was handed down late last week, Singh v Minister for Immigration and Anor (2017) FCCA 2461 (12 October 2017).

The background of the case was that the applicant had PIC 4020 problems as the result of a previous application for a Subclass 485 visa. 

That Subclass 485 application had been handled for the applicant by the now-notorious migration consultancy, “S & S Migration”.  As had occurred in several S & S Migration cases, the 485 application had stated that the applicant had received a skills assessment from the Trades Recognition Authority as a cook, but the TRA had not, as a matter of fact, ever carried out a skills assessment in relation to the applicant.  It was the applicant’s claim that the 485 visa application had been made on his behalf by S & S Migration without his knowledge or consent.

The 485 visa application was refused, and apparently the applicant at some point withdrew his application for merits review of that refusal.

So PIC 4020 loomed like the sword of doom over the subsequent Partner visa application that the applicant lodged with the Department because the 485 visa had been refused on PIC 4020 grounds within the 3 year period before the Partner visa application was lodged (the Court’s decision does not explain how the applicant in this cases avoided difficulties with the section 48 bar).

The evidence that was submitted to the Tribunal certainly appeared to establish that there were compassionate circumstances in the case that might have supported the grant of a waiver of PIC 4020: the sponsor had drug and alcohol problems, and the Tribunal accepted that if the applicant were to be required to leave Australia as the result of refusal of his visa application, that the sponsor would suffer psychological and material hardship.

The Tribunal also accepted that the applicant and the sponsor had formed a close bond with each other, that the applicant provided the sponsor with emotional support and companionship, and that the parties would find a forced separation to be very distressing.

However, the Tribunal concluded that because close emotional attachment between the parties is the hallmark of any genuine spousal or de facto relationship, that attachment was not relevant to assessing whether there were compassionate or compelling circumstances justifying the grant of a waiver of PIC 4020.

Judge Manousaridis ruled that the Tribunal had committed jurisdictional error by interpreting PIC 4020 in this manner.  His Honour held that just because a close emotional attachment is the hallmark of a genuine partner relationship, it does not mean that such an attachment can never give rise to compelling or compassionate circumstances warranting the grant of a waiver of PIC 4020.  Indeed, Judge Manousaridis held that there is nothing in PIC 4020 that suggests that a decision-maker may ignore the nature and extent of the bond between particular parties to a particular partner relationship just because it is to be expected that emotional bonds are present in all genuine partner relationships.

In fact, Judge Manousaridis ruled that the proper approach to be followed in PIC 4020 cases is for the decision-maker to assess whether the separation from a spouse or partner would cause the Australian citizen/permanent resident/eligible New Zealand citizen sponsor suffering or distress, and whether the degree of suffering or distress would justify the grant of the visa.

So, quite the opposite of the approach taken by the Tribunal, Judge Manousaridis held that not only is the emotional attachment between parties to a relationship something that cannot be excluded from an assessment as to whether compassionate or compelling circumstances exist, but it is indeed highly relevant.

Indeed, it is hard to imagine a situation where there is a genuine relationship where the forced separation of the parties due to a visa refusal would not cause the sponsor tremendous suffering and distress. 

So it would certainly appear that whenever the “hallmarks” of a genuine partner relationship are present – namely, again, close emotional binds between the parties to the relationship – those bonds may very well constitute compassionate and compelling circumstances justifying a waiver of PIC 4020.

And so this decision highlights a very powerful strategy for avoiding the application of PIC 4020 in cases involving partner visa applications! And that makes it a decision to take note of and to keep in mind!

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