Burns (Migration)

[2022] AATA 1657

Burns (Migration) [2022] AATA 1657 (4 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rhiannon Burns

VISA APPLICANT:  Mr Nizar Uthman

CASE NUMBER:  1934277

HOME AFFAIRS REFERENCE(S):          BCC2018/2067638 BCC2018/2067638

MEMBER:Nicholas McGowan

DATE AND PLACE:  4 May 2022, 12:41pm in Melbourne.

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the applicant meets clause 309.225 of Schedule 2 to the Regulations.

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – incorrect information in the visa application – countries of previous residence – compelling or compassionate circumstances – children born of the relationship – best interests of the children – decision under review remitted          

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2, cl 309.225; Schedule 4, Public Interest Criteria 4020

REASON(S):

The applicant applied for subclass 309 (temporary) and 100 (permanent) visas on 12 May 2018 on the basis of his spousal relationship with his sponsor, who is an Australian citizen. Clause 309.225 requires (in part) that the applicant satisfies the public interest criteria (PIC)4020: subclause 4010(1). The applicant did not satisfy PIC4020 because he declared in his visa applications (question 17 on Form 80) that he’d only resided in Lebanon for the previous 10 years (and had only visited one other country - Japan - in that time), whereas the Department ascertained the applicant had lived in Greece for four years, Germany for five months, and had travelled to Syria, Turkey and Italy. The applicant (has already) apologised for the “error” and provided his own explanation. The Minister’s delegate did not find the explanation plausible. The Tribunal concurs. It follows that the Tribunal must (as the Minister’s delegate did) go on to consider the ‘waiver’ associated with PIC4020 as the admission of providing ‘false information’ means the applicant cannot satisfy PIC4020(1). Relevantly, the applicant seeks the waiver of PIC4020(1) on the basis that there are compelling and/or compassionate circumstances affecting the interests of an Australian citizen that would justify the granting of the visa. The Australian citizen sponsor and applicant now have two Australian citizen children together (and the sponsor two young daughters in Australia). Further, the three year ‘exclusion’ period (associated with a refusal decision where an applicant fails to satisfy PIC4020) has now ceased. In other words, if the applications fail at this stage, the applicant can apply immediately for the same visas. In the Tribunal’s view, the applicant’s applications have been delayed for four years and during that period their family has been separated and two children have lived abroad. For compassionate reasons, this Tribunal is satisfied the waiver should apply. It is in the best interests of the children and sponsor that they be permitted to live together (with the applicant) in their country of citizenship. For these reasons (including the reasons outlined by the sponsor herself in her letter of 20 April 2021), the Tribunal remits the applications with the direction the applicant meets public interest criteria (PIC) 4020(4) for the purposes of PIC4020(1) and, relevantly, clause 309.225.