Chekwendo (Migration)

This matter concerned an application for a Skilled Independent (Permanent) visa (Subclass 189) by a citizen of Kenya. The primary decision had determined that the applicant and Ms Nancy Karume, listed as his spouse and a migrating family member, did not meet the definition of spouse under Regulation 1.15A, and therefore Ms Karume was not a member of the applicant's family unit. The applicant subsequently sought to re-include Ms Karume and provided further information regarding his relationship with Ms Marygorret Sasaka, including a decree nisi and a certificate of making decree nisi absolute indicating the dissolution of their marriage. The review was heard by the Tribunal, with Nicola Findson presiding.

The central legal issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4020, which requires that an applicant has not provided bogus documents or false or misleading information in relation to their visa application or a previous visa, and has not had a visa refused for failing to meet this criterion. The Tribunal also considered whether there were compelling or compassionate circumstances to waive the requirements of PIC 4020(1) and (2), noting that such waivers do not apply to identity requirements under PIC 4020(2A) and (2B). The Tribunal was required to determine if the applicant and his family members satisfied these criteria, particularly in light of the previous delegate's findings regarding the spousal relationship and the dissolution of the applicant's marriage.

The Tribunal reasoned that the applicant's third, fourth, and fifth named applicants had consistently been dependent on him, as defined by r 1.05A(1). Crucially, the Tribunal concluded that the applicant met PIC 4020 for the purposes of cl 189.215. While the case text does not explicitly detail the Tribunal's reasoning for finding that PIC 4020 was met, it notes that the applicant provided written and oral evidence. The Tribunal also referenced the complexities of polygamy under customary law in Kenya and the applicant's experience as a Registered Nurse, suggesting these factors may have been considered in the overall assessment, although the specific application of these to PIC 4020 is not elaborated.

The Tribunal remitted the applications for Skilled Independent (Permanent) visas for reconsideration. The direction given was that the first named applicant meets the criteria for Subclass 189 visas, specifically Public Interest Criterion 4020 for the purposes of cl 189.215 of Schedule 2 to the Regulations.