Dharmapuri (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600, made by a visa applicant seeking to join her husband, an Australian citizen, in Australia. The visa application had been refused by a delegate due to the applicant's previous non-compliance with visa conditions, specifically a refusal of a skilled 189 visa on Public Interest Criterion (PIC) 4020 grounds, which resulted in a three-year exclusion ban from Australia. The applicant argued that there were compassionate and compelling circumstances justifying a waiver of PIC 4020.

The primary legal issue before the Tribunal was whether the requirements of PIC 4020(2) should be waived, as permitted by cl.600.213, to allow for the grant of the Subclass 600 visa. This criterion relates to previous visa refusals due to providing bogus documents or false or misleading information. The Tribunal was required to determine if the circumstances presented by the applicant constituted "compelling circumstances that affect the interests of Australia" or "compassionate or compelling circumstances that affect the interests of an Australian citizen," as outlined in PIC 4020(4).

The Tribunal reasoned that the applicant's situation presented compelling and compassionate circumstances. The applicant was married to an Australian citizen, was pregnant with a child who would also be an Australian citizen, and had been separated from her husband for almost their entire four-year marriage. The Tribunal noted the significant emotional distress and financial strain on the Australian citizen husband due to the prolonged separation and repeated travel to India. Furthermore, the stress of the situation had negatively impacted the health of the applicant's father. Applying the principles from *Kaur v MIBP* [2017] FCAFC 184, the Tribunal was satisfied that these circumstances justified waiving the requirements of PIC 4020(2).

Consequently, the Tribunal remitted the application for reconsideration. The direction was that the applicant met the requirements of PIC 4020 for the purposes of cl.600.213 of Schedule 2 to the Regulations, allowing for the potential grant of the Subclass 600 visa.