LI (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered an appeal by an applicant for a Subclass 186 Employer Nomination Scheme visa (Temporary Residence Transition stream) against a decision that she failed to satisfy Public Interest Criterion (PIC) 4020. The applicant, a Chinese national, had previously held a Subclass 457 visa. The core of the dispute concerned information provided by the applicant regarding her marital status and the whereabouts of her husband, Mr He, which the Department considered to be false or misleading in a material particular.

The primary legal issue before the Tribunal was whether the applicant had provided false or misleading information in relation to her Subclass 186 visa application or a visa she held in the 12 months prior, thereby failing to meet PIC 4020. Specifically, the Tribunal had to determine if the applicant's claims about separating from Mr He in December 2013 and his subsequent departure to China were accurate, or if this constituted a failure to satisfy PIC 4020(1). The Tribunal also considered the implications of Mr He’s immigration status in Australia during the relevant periods.

The Tribunal found that the applicant had provided spontaneous and consistent evidence regarding her circumstances and that her explanations for certain disputed matters were plausible. While the applicant had stated she married Mr He in May 2013 and separated in December 2013, and that he had returned to China, evidence suggested otherwise. Mr He’s New South Wales driver’s licence listed the applicant’s address three years after the claimed separation, and he remained a beneficiary of her superannuation policy in 2017. Furthermore, departmental records indicated Mr He had not left Australia until his deportation in May 2016, suggesting he had been in Australia unlawfully for a significant period. Despite these discrepancies, the Tribunal concluded that the applicant met PIC 4020 for the purposes of her Subclass 186 visa application.

Consequently, the Tribunal remitted the application for a Subclass 186 Employer Nomination (Permanent) visa for reconsideration, directing that the applicant satisfied PIC 4020 for the purposes of cl.186.213 of Schedule 2 to the Migration Regulations 1994.