2514343 (Migration)
[2025] ARTA 845
•26 June 2025
2514343 (MIGRATION) [2025] ARTA 845 (26 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Applicant:OKL
Visa Applicant: ZNB
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2514343
Tribunal:General Member B Gogarty
Place:Hobart
Date: 26 June 2025
Decision:The Tribunal sets aside the decision under review and 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 4014 for the purposes of cl 600.213(1) of Schedule 2 to the Regulations
Statement made on 26 June 2025 at 12:54pm
CATCHWORDS
MIG MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – waiver of risk factor – applicant departed Australia as an unlawful non-citizen – Australian citizen child – health reasons – priority consideration – compassionate or compelling circumstances – mental health conditions – evidence of an underage witness – independent health assessment – effects of maternal separation – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Act 2024 (Cth), s 106
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4 Public Interest Criterion 4014CASES
Anani v MIMAC [2013] FCCA 1140
Kaur v MIBP [2018] FCCA 1614
Singh v MIBP [2017] FCCA 2461
Thongpraphai v MIMA [2000] FCA 1590Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister on 20 March 2025 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 February 2025. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 600.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she did not satisfy Public Interest Criterion 4014 (PIC 4014). Further details of the delegate’s decision are set out in the decision below.
Urgent listing and directions hearing
On 10 May 2025 the review applicant wrote to the Tribunal requesting the matter be prioritised as his [age]-year-old son (herein referred to by the anonymised party identifier PKL) is also the son of the visa applicant, and “her [the visa applicant’s] absence is having a profound emotional and psychological impact on him”. Attached to that request were relevant identity documents proving the relationship between each person as well as an Australian passport for PKL identifying him as an Australian citizen. The request was approved by a registrar and the matter was expedited for priority consideration on 23 May 2025. Upon constitution to the Presiding Member the applicant was sent a request for information (5 June 2025) and the matter was listed for a preliminary hearing on 6 June 2025.
The review applicant appeared at the scheduled hearing indicating that he required further time to respond to the Tribunal’s questions and obtain appropriate evidence. The review applicant also agreed that he had not fully understood the basis of the delegate’s decision and required further time to prepare appropriate submissions. As such the Tribunal, with the agreement of the applicant, treated the case event as a directions hearing. A further hearing was set down for 27 June 2025. The review applicant made a series of submissions after the directions hearing and a further request for information, including more precise directions and questions relating to the health and wellbeing of PKL was sent to the applicant on 16 June 2025.
Decision without a hearing
On 20 June 2025 the review applicant submitted, amongst other things, a medical report relating to PKL which had been requested by the Tribunal at the hearing and in the further request for information. Having reviewed that report the Tribunal considers, for the reasons set out below, that report satisfies the conditions of a waiver under PIC 4014 (4014(1)(b)(ii)) which is dispositive of the matter wholly in the applicant’s favour. Pursuant to s 106(3) of the Administrative Review Tribunal Act the Tribunal was satisfied it could make its decision without a further substantive hearing.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets PIC 4014 as required by cl 600.213(1) for the grant of the visa. That criterion sets out particular circumstances in which an applicant is deemed to be affected by a relevant ‘risk factor’. The relevant parts of PIC 4014 are as follows:
Broadly speaking, PIC 4014 defines circumstances where an applicant is affected by a relevant ‘risk factor’ and, as a result, is subject to a three-year exclusion period from being granted a visa. The defined ‘risk factors’ in PIC 4014 include circumstances where an applicant has previously departed Australia as an unlawful non-citizen, or as the holder of a particular bridging visa.
An applicant who is affected by a risk factor may only be granted a visa if the three-year exclusion period has passed since their departure from Australia, or if the Minister is satisfied of one of the following exceptions under 4014(1)(b) justify the granting of the visa:
i) There are compelling circumstances that affect the interests of Australia; or
ii) There are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
A copy of PIC 4014 is attached to this decision.
Is the visa applicant affected by a risk factor in PIC 4014?
The delegate decided the applicant was affected by a risk factor under clause 4014(4) because they departed Australia [in] February 2024 as a Bridging Visa E holder having overstayed her visa by more than 28 days. The review applicant does not contest the visa applicant met these criteria although he sought to advance explain the health reasons why the visa applicant had overstayed her bridging visa. The Tribunal notes that 4014 makes the 28 day rule absolute and not something which the Minister or Tribunal has discretion to waive. If the 28-day risk factor is triggered it may only be overcome by one of the exceptions set out above. Having reviewed the relevant departmental and movement records for the applicant the Tribunal is satisfied that the visa applicant is affected by a risk factor for the purposes of PIC 4014.
Should the risk factor under PIC 4014 be waived?
Having decided the applicant is affected by a risk factor for the purposes of 4014 the delegate invited submissions and evidence about whether a waiver should be granted. While the review applicant sought to address that request the submitted evidence did not address the specific elements of either of the main waiver grounds. At the directions hearing the review applicant acknowledged he may have misunderstood what he was required to address his submissions to and had directed his efforts to explaining why the visa applicant had overstayed and why the visa applicant should be treated compassionately. As noted, these are relevant considerations in respect of the possible waivers under PIC 4014 and the delegate correctly decided on the evidence presented that there was no are grounds to justify the waiver of PIC 4014 and the grant of the visa.
The Tribunal presently has the advantage of a broader and more complete range of relevant evidence – which the Tribunal is satisfied is true and correct – than was available to the delegate. Most notably that :
· The visa applicant and review applicant are the divorced parents of PKL, who lives with his father in Australia;[1]
· The visa and review applicants are on good terms and technically share custody of their son, PKL, albeit in a limited way in respect of the visa applicant who is offshore.[2]
· PKL is close to, and historically emotionally dependent on his mother, but has not been able to see her in person since she departed Australia [in] February 2024.[3]
· That the separation between PKL and his mother, the visa applicant, has caused PKL distress and is affecting his health and well-being.
[1] Tribunal file, document ID 15728750.
[2] Ibid.
[3] Movement record for visa applicant, evidence at directions hearing, Tribunal file, document ID 15821185.
The review applicant initially sought to establish the last point (d), by giving his own evidence about PKL’s state of mind and calling PKL as a witness at the substantive hearing. At the directions hearing the Tribunal explained the limited probative value of that approach – it was proposed that PKL would give evidence in the presence of the review applicant without independent support, intermediary or separate representative – and the weight given to the evidence may not justify the potential risk to the welfare of PKL. The review applicant was directed to obtain a health report from a qualified medical professional. Following the hearing the Tribunal wrote to confirm that direction and notified the review applicant that it would not accept the evidence of PKL as a witness in the circumstances. On 18 June 2025 the review applicant confirmed that PKL would not be called as a witness and that an independent health assessment for him was being obtained and would be provided as evidence prior to the substantive hearing.
On 23 June 2025 the review applicant provided a psychological assessment report for PKL, prepared by [Psychologist A], who is a psychologist registered with the Australian Health Practitioner Regulation Agency.[4] The Tribunal is satisfied that [Psychologist A] is a suitably qualified expert, who is competent to assess the mental health and psychological wellbeing of a child.[5] The Tribunal separately notes the extensive nature of the investigation, its use of clinically appropriately diagnostic and assessment tools, and the comprehensive nature of the report provided by [Psychologist A]. The Tribunal acknowledges that [Psychologist A] made special efforts to prepare the report in a way that addressed he questions the Tribunal had asked about PKL’s emotional and psychological well-being arising from the separation from his mother which it had put in its letter to the review applicant on 16 June 2025. The Tribunal accepts the entirety of the psychological report prepared by [Psychologist A] into evidence without qualification and the following summary of PKL’s clinical assessment:
“[PKL] is a psychologically vulnerable child who presents outwardly as sensible, polite, and well-adjusted. However, both his verbal disclosures and standardised assessments reveal significant internal distress, including trauma-related avoidance, severe affective dysregulation, obsessive-compulsive symptoms, and separation anxiety. This contrast between external presentation and internal experience highlights the complexity of PKL’s emotional world and the need to consider his well-being beyond observable behaviour. While he demonstrates resilience, insight, and emotional capacity, the loss of his mother’s physical presence remains a central, unresolved source of psychological strain.”[6]
[4] Tribunal file, document ID 15857223.
[5] APHRA registration confirmed in Tribunal file, document ID 15869444.
[6]Emphasis added: Tribunal file, document ID 15857223, p 9.
The Tribunal is satisfied that this passage provides sufficient and determinative evidence relevant to the waiver provided by PIC 4014(1)(b)(ii), namely that, in this particular case, there is “compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”.
The Tribunal is satisfied that PKL is an Australian citizen. The review applicant is also an Australian citizen and the Tribunal accepts that, as PKL’s primary carer the effects of maternal separation on PKL psychological welfare is a matter of significant parental concern and emotional distress. So much was evident across all the submissions made by the review applicant and in the observable interactions he had with the Tribunal. As such the review applicant is, together with PKL, a person for whom the assessment of compassionate and compelling circumstances is to be addressed.
Neither the term “compassionate or compelling circumstances that affect the interests”, nor its constituent elements are defined in the regulations or Act. However, in relation to other, analogue PICs in Schedule 4, the terms have been judicially interpreted as follows:
·‘Compelling’ is a question of the degree to which the decision maker is driven irresistibly to a conclusion which will ‘bring about moral necessity’.[7]
·‘Compelling and compassionate’ is, read together, a question of fact and degree which requires the Tribunal to make a subjective assessment of all of the circumstances to ensure, cumulatively that not only compassionate reasons exist but they are far reaching and heavily persuasive.[8]
·‘Interests’ includes any present or future state of affairs that is or may be of benefit or to the advantage of the relevant person,[9]
·‘Circumstances that affect’ requires a comparison between the position the relevant person will be in if the visa applicant is granted a visa, with the position the relevant person will be in if the visa applicant is not granted a visa.[10]
[7] Kaur v MIBP [2018] FCCA 1614 at [24]; Thongpraphai v MIMA [2000] FCA 1590.
[8] Anani v MIMAC [2013] FCCA 1140 at [34]; McNamara v MIMIA [2004] FCA 1096 at [10].
[9] Singh v MIBP [2017] FCCA 2461 at [29]–[32] (in relation to identical words in PIC 4020).
[10] Ibid.
Applied to the present facts the Tribunal is satisfied each of these elements is answered positively.
The expert evidence provided by [Psychologist A] establishes that PKL, an Australian citizen is a psychologically vulnerable child experiencing significant internal distress, separation anxiety and diagnosable mental health conditions which are increasing in severity because of the prolonged physical absence of his mother. The Tribunal accepts that these circumstances are compelling. The circumstances are ones which serve to deprive an Australian citizen, who is a vulnerable child, from contact with their mother, causing psychological harm to him. The weight and seriousness of PKL’s psychological harm, as documented by a qualified expert using clinically approved tools, and its direct causal link to the visa applicant’s risk factor exclusion, would bring about an outcome contrary to moral necessity – namely continuing and worsening harm to a vulnerable child – if a waiver is not granted...
The Tribunal is also satisfied that the circumstances are compassionate as a question of fact and degree. Cumulatively, the evidence establishes that PKL’s psychological needs are genuine and ongoing, and that the only effective mitigation of harm to him is the restoration of his mother’s physical presence. The review applicant’s role as PKL’s father and current primary caregiver, and the distress he is experiencing for his son’s welfare, contribute to the compelling compassionate bases for the waiver.
In the case of PKL his psychological health and wellbeing clearly fall within the definition of interest under the PIC. The Tribunal is also satisfied that a parent and guardian of a child has an absolute interest in their welfare. Insofar as the risk factor prevents PKL’s mother may from obtaining a visa to be physically with him, the Tribunal is satisfied that it affects PKL and the review applicant’s interests in the relevant way. The comparison between the two positions – with or without the visa – clearly establishes that the granting of the visa is to the benefit of both these persons, who are Australian citizens, satisfying the test under PIC 4014(1)(b)(ii).
The Tribunal is therefore satisfied there are grounds to justify the waiver of PIC 4014 in respect to the grant of the visa. As that finding is determinative of the confined it is not necessary to consider the remainder of the evidence or submissions made by the review applicant.
DECISION
The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Visitor (Class FA) Subclass 600 visa:
·PIC 4014 for the purposes of cl.600.213 of Schedule 2 to the Regulations.
Date(s) of hearing: 6 June 2025 (Directions)
Representative for the Applicant: N/a
ATTACHMENT
Migration Regulations 1994
Schedule 4
4014 (1) If the applicant is affected by the risk factor specified in subclause (4):
(a) the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or
(b) the Minister is satisfied that, in the particular case:
(i) compelling circumstances that affect the interests of Australia; or
(ii) 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 within 3 years after the departure.
(4) Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:
(a) an unlawful non - citizen; or
(b) the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.
(5) Subclause (4) does not to apply to a person if:
(a) the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect; or
(b) a bridging visa held by the person at the time of departure was granted:
(i) within 28 days after a substantive visa held by the person ceased to be in effect; or
(ii) while the person held another bridging visa granted:
(A) while the person held a substantive visa; or
(B) within 28 days after a substantive visa held by the person ceased to be in effect.
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