Bunby (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), by the applicant, Mr. Bunby, and his wife. The dispute arose from the secondary applicant, Mrs. Bunby's, failure to declare a criminal conviction in her visa application. The primary issue before the Tribunal was whether the applicants met Public Interest Criterion (PIC) 4020, which requires that an applicant has not provided false or misleading information or a bogus document in relation to their visa application or a previous visa held within the preceding 12 months. The Tribunal also considered whether there were compelling or compassionate reasons to justify granting the visa despite this failure.

The Tribunal was required to determine if the applicants had provided false or misleading information or a bogus document in relation to the visa application, as defined by PIC 4020(1) and s.5(1) of the Migration Act 1958. It also had to assess whether the applicants met the further requirements of PIC 4020 regarding previous visa refusals and identity. Crucially, the Tribunal had to consider whether compelling or compassionate circumstances existed that would justify a waiver of the PIC 4020(1) and (2) requirements.

The Tribunal reasoned that the definition of "information that is false or misleading in a material particular" in PIC 4020(5) requires the information to be relevant to a criterion for the grant of the visa. In contrast, the definition of a "bogus document" in s.5(1) of the Act does not have this relevance requirement. However, the Tribunal concluded that the applicant did satisfy PIC 4020 for the purposes of cl.186.213. The Tribunal remitted the applications for reconsideration with a direction that the first-named applicant meets PIC 4020 for the purposes of cl.186.213.