Jargalsaikhan (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning applications for Subclass 186 Employer Nomination (Permanent) visas. The primary applicant had failed to declare the secondary applicant's criminal convictions in a prior Subclass 457 visa application. The Tribunal considered whether the applicants met the requirements of Public Interest Criterion (PIC) 4020, which pertains to the provision of false or misleading information or bogus documents.

The central legal issue before the Tribunal was whether the applicants had provided false or misleading information in relation to their visa applications, thereby engaging PIC 4020(1). The Tribunal also considered the possibility of waiving the requirements of PIC 4020(1) and (2) under PIC 4020(4) if compelling or compassionate circumstances affecting the interests of an Australian citizen were present. The Tribunal was required to determine if the failure to declare the convictions constituted a breach of PIC 4020 and, if so, whether the circumstances warranted a waiver.

The Tribunal reasoned that while the secondary applicant's failure to declare convictions in the prior 457 application was information that was false or misleading in a material particular, it was not provided with an intention to deceive. The Tribunal noted the secondary applicant's lack of understanding of Australian law and the fact that a child of the applicants is now an Australian citizen. These factors were considered compassionate circumstances affecting the interests of an Australian citizen. The Tribunal concluded that these circumstances justified a waiver of the PIC 4020(1) requirements.

Consequently, the Tribunal remitted the applications for Subclass 186 visas for reconsideration. The direction was that the primary applicant met PIC 4020 for the purposes of cl 186.213, and the secondary applicants met PIC 4020 for the purposes of cl 186.313, indicating that the waiver had been applied.