Australian Immigration Daily News

Are you ready for another quiz?

OK, whether you are ready or not, here it is:

Suppose you have a client who has submitted a “bogus document” to the Department in support of an application for a Subclass 485 visa.  There is no argument that the document is in fact bogus.  So your client needs to get a “waiver” of Public Interest Criterion 4020.

You will of course recall that the legal standard for getting such a waiver are as follows:

The “Minister” must be satisfied either that there are:

(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.

Your client has put forward the following evidence in support of her claim that PIC 4030 should be waived:

• She has been doing volunteer work in the community teaching the Punjabi language to young children;
• She has worked as a nurse for a year, having undertaken a course as an assistant nurse;
• She also assisted a couple, one of who is in a wheelchair and one of whom has dementia;
• She and her husband also assist a person who is blind;
• All of the persons she has insisted are Australian citizens.

The Tribunal declines to grant a waiver of PIC 4020, and in its Decision, states: “In these circumstances, the Tribunal does not consider that the matters raised constitute circumstances that are sufficiently compelling as to justify the granting of the Visa.”

Is there anything wrong with that sentence? If so, what’s the problem with it?

No peeking or reading below is allowed, those who do so will be promptly referred to OMARA for suitable punishment in the form of being beaten by a wet noodle!

Give up?

The answer is to be found in the recent decision of Judge Baird in Kaur & Ors v Minister for Immigration & Anor (2018) FCCA 1614 (25 June 2018).

The difficulty that the Court found with the Tribunal’s decision is that it “conflated”, or mixed together, the two separate tests in PIC 4020 into one single test.

In the Court’s view, the way PIC 4020 is written, there must be two separate inquiries to determine whether a waiver should be granted:

One is whether there are compassionate circumstances that affect the interests of an Australian citizen, etc.

And the second is to determine whether there are compelling circumstances that affect the interests of an Australian citizen.

As discussed in Judge Baird’s reasons, the terms “compassionate” and “compelling” have different meanings.

The term “compassionate” means “a feeling of sorrow or pity for the sufferings or misfortunes of another, sympathy” (Mala v Minister) while the term “compelling” has been interpreted to mean “circumstances which force or drive the decision maker” (Babicci v Minister).

The problem that was identified by Judge Baird in Kaur was that the language used by the Tribunal suggested that it had found that the compassionate circumstances put forward by the applicant were not sufficiently compelling to justify waiving PIC 4020.

In other words, the Tribunal’s reasons indicated that the Tribunal considered both that if a compassionate reason was presented, that the compassionate circumstances had to be sufficiently compelling.

The Court found that this was an incorrect approach, and a misreading of PIC 4020.

In the Court’s view, it is sufficient that either of the two tests in PIC 4020 be satisfied – that is, that PIC 4020 may be waiver either if compassionate circumstances are identified or if compelling circumstances are identified. 

There is no requirement in PIC 4020 that the circumstances by both compassionate and sufficiently compelling that in the eyes of the Tribunal there is justification for the grant of a waiver.

It all goes to show that it is essential to read decisions of the Tribunal with care and attention to detail, as the language of a Tribunal decision may reveal a legal error that will enable your client to get an unfavourable Tribunal decision remitted for reconsideration!