Fajloun (Migration)

[2023] AATA 2639

Fajloun (Migration) [2023] AATA 2639 (3 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chadi Fajloun

REPRESENTATIVE:  Mr Christopher Levingston (MARN: 9301108)

CASE NUMBER:  1905463

HOME AFFAIRS REFERENCE(S):          BCC2018/378635

MEMBER:Kira Raif

DATE:3 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

·Public Interest Criterion 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations

Statement made on 03 July 2023 at 6:51am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – Australian citizen sponsor and children – compassionate circumstances that affect the interests of Australian citizens – applicant did not meet PIC 4020 – requirements of PIC 4020(1) should be waived – decision under review remitted       

LEGISLATION
Migration Act 1958, ss, 5, 65
Migration Regulations 1994, Schedule 2, cl 820.226, Public Interest Criterion 4020

CASES
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Lebanon, born in October 1989. He applied for the visa on 23 January 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 820.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion (PIC) 4020. The applicant seeks review of the delegate’s decision.

3. The applicant was represented in relation to the review. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 820.226 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

5. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B).

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

6. There is no evidence before the Tribunal that the applicant had given, or caused to be given, a bogus document or information that was false or misleading in a material particular in relation to the present visa application. Therefore, the applicant meets PIC 4020(1).

   Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

7. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that he made the application for the Partner visa on 23 January 2018. He had previously applied for a Temporary Work visa which was refused on 4 January 2018 on the basis that the applicant did not meet PIC 4020(1). While in his submission to the delegate the applicant disputes the decision to refuse to grant him the Work visa stating there was miscommunication between the Department and his previous employer, there is no evidence that that decision had been overturned.

9. The Tribunal finds that the applicant had previously been refused a visa on the basis that he did not meet PIC 4020. That decision was made within the three years before the application was made for the Partner visa.

10. The Tribunal finds that the applicant had been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1). The Tribunal is satisfied the applicant was not under 18 at the time the application for the refused visa was made. Therefore, PIC 4020(2) is not met.

    Should the requirements of PIC 4020(1) or (2) be waived?

11. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

12. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

13. For the following reasons, the Tribunal issatisfied that the requirements should be waived.

14. In his declaration in response to the delegate’s correspondence, the applicant stated that he is a taxpayer in Australia and he and his partner are expecting their first child. In his submissions to the Tribunal the applicant provided evidence of having three children born from his relationship with the sponsor. The applicant also provided psychological reports in relation to the sponsor which refer to the applicant and sponsor experiencing stress and anxiety due to the uncertainty of the visa process. There is unfortunately little other evidence before the Tribunal concerning the circumstances of the Australian citizen sponsor and children.

15. Nevertheless, the Tribunal accepts that the applicant and sponsor have three minor children who are Australian citizens. The Tribunal also accepts that the sponsor is an Australian citizen. The Tribunal is prepared to accept that the applicant maintains a parental role in relation to the children and that the sponsor relies on him in providing care and support to the children. In these circumstances, the Tribunal finds that there are compassionate circumstances that affect the interests of Australian citizens that justify the granting of the visa. Therefore the requirements of PIC 4020(2) should be waived.

    Has the applicant satisfied the identity requirements?

16. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There is nothing to suggest that the applicant’s identity is at issue and the Tribunal is mindful that the applicant had provided a copy of his passport with the application. The applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

17. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

18. There is no evidence that the applicant or any member of his family unit have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A). Therefore PIC 4020(2B) does not apply.

19. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 820.226.

    DECISION

20. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

    ·Public Interest Criterion 4020 for the purposes of cl 820.226 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member