Maqsood (Migration) - [2023] AATA 2812

Maqsood (Migration) [2023] AATA 2812 (7 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2213747

MEMBER:Christine Cody
DATE:7 August 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

Statement made on 7 August 2023 at 6:11pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – false or misleading information – applicant’s other family members in Australia – intention to visit mother only – compassionate or compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.213; Schedule 4 Public Interest Criterion 4020; r 1.03
CASES
Anani v MIMAC [2013] FCCA 1140
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA (2005) 141 FCR 285
Kaur v MIBP [2014] FCCA 1264
Kaur v MIBP [2017] FCAFC 184
Kaur v MIBP [2018] FCCA 1614
McNamara v MIMIA [2004] FCA 1096
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIAC [2012] FMCA 145
Singh v MIBP [2016] FCA 156
Singh v MIBP [2018] FCCA 1136
Trivedi v MIBP (2014) 220 FCR 169
Umer v MIBP [2017] FCCA 2934
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 August 2022 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 21 April 2022. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 600.213 of Schedule 2 to Regulations because the delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4020 contained in clause 4020 in Schedule 4 of the Regulations as required by cl 600.213 for the grant of the visa. The delegate found that there was evidence that the visa applicant gave the Minister information that is false or misleading in a material particular in relation to the application for the visa.
The review applicant is the visa applicant’s mother. She lodged an application for review to the Tribunal, providing a copy of the delegate’s decision record, and later, submissions to the Tribunal. On 28 July 2023 the review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. Where relevant, the evidence given at hearing is set out below.
The issues in this case are, first, whether the visa applicant provided false or misleading information in a material particular thereby failing to meet PIC4020(1) and, second, if so, whether there are circumstances for waiving PIC4020(1) that justify the grant of the visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
PIC 4020
Broadly speaking, PIC 4020 (set out in the attachment) 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).
The requirements in PIC 4020(1) and (2) can be waived where there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa: PIC4020(4).
Has the applicant given, or caused to be given information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5). The definition requires the information to be false or misleading at the time it is given. It also requires that there is a visa criterion upon which the allegedly false information could materially bear[1]. It applies to information which goes to something which will or might determine the visa application and is not concerned with information that is irrelevant to the visa requirements.[2] However, the referable criterion cannot be PIC 4020 itself.[3]
[1] Singh v MIAC [2012] FMCA 145 at [68].
[2] Kaur v MIBP [2014] FCCA 1264 at [80]–[81]. See also Singh v MIBP [2018] FCCA 1136.
[3] Singh v MIBP [2015] FCCA 1939 at [63]. In considering the materiality requirement in PIC 4020(5), the Court held that ‘[i]t was a misconstruction and misunderstanding of the applicable law for the Tribunal to determine the relevance of the information given by the applicant about the nature of his employment for the purposes of PIC 4020(1) by reference to the applicable version of cl 485.224 which simply required him to satisfy public interest criteria, including PIC 4020’. This overcomes the reasoning in Bari v MIAC [2013] FMCA 14, which appeared to accept a submission that information will be false or misleading ‘in a material particular’ if it is relevant to the criterion which requires satisfaction of PIC 4020, which would arguably mean that any false or misleading information would be false or misleading information ‘in a material particular’ even if otherwise irrelevant to all other visa criteria.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the visa applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the visa applicant knowingly or unwittingly.
PIC 4020 is directed at information which is false, in the sense of purposely untrue, rather than information which lacks the necessary element of fraud or deception (e.g. in the case of an innocent or unintended mistake).[4] While it is not necessary for a visa applicant to know of, or be directly involved in, any falsehood for PIC 4020 to be engaged, there must have been knowledge or intention on somebody’s part.[5] In order to be misleading, the information must convey or contain a misrepresentation. An omission is also capable of amounting to false or misleading information.[6]
[4] Trivedi v MIBP (2014) 220 FCR 169 at [32], [54].
[5] Trivedi v MIBP (2014) 220 FCR 169 at [28], [33] and [49].
[6] Umer v MIBP [2017] FCCA 2934 at [46]–[47], which held that the Tribunal was correct to find that the review applicant’s failure to answer a question on a visa application form about previous visa applications was misleading in circumstances where the review applicant knew that there was a previous visa refusal, knew he had not provided the correct information, and made no effort to correct the omission.
In this case the false and misleading information relates to the current visa application (and not a visa that the applicant held in the 12 months before the application was made).
Evidence presented to the delegate and concerns raised by the delegate
The visa applicant provided to the Department a visa application form with supporting documents on 21 April 2022. She is a Pakistan national. In the application form she specified the reason for the application is that she would like to visit her mother in Australia. She sought a proposed period of stay of up to 3 months, two visits, from 30 June - 20 July 2022, and 27 December 2022 -15 January 2023 (in case COVID prevented the first visit, she would then be able to celebrate her birthday [in] January with her mother in Australia). She states that she is employed in [Country 1] and resides there on a work visa. She has never previously travelled to/applied for a visa to Australia. She previously travelled to Istanbul in 2019 and complied with the visa conditions.
In the form she confirmed that she has provided complete and correct information in every detail on the form and in any attachments to it, and she understands that if any fraudulent documents or false or misleading information have been provided with this application, the application may be refused and the visa applicant, and any member of their family unit, may become unable to be granted a visa for a specified period of time. She also understands that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled. She agreed to inform the Department in writing immediately as they become aware of a change in circumstances or if there is any change relating to information they have provided in or with this application, while it is being considered.
In that application form there was the question: “Will the applicant visit any relatives, friends, or contacts while in Australia?” In response she stated “yes”. She then provided details; the only person listed was her mother, the review applicant.
As evidence of their relationship the visa applicant provided a Family Registration Certificate (this notes that the review applicant is married and she is the mother of [several] children including the visa applicant; the document does not state the whereabouts of any of the family members). As evidence of her mother’s status in Australia she provided copies of the review applicant’s Pakistan passport bio page and her visa grant dated 22 July 2020 showing that the review applicant was granted a protection visa (subclass 866).
As part of her supporting documents she provided a letter from her mother and a letter from herself. The letters refer to the visa applicant only visiting the mother:
The visa applicant’s supporting letter dated 4 April 2022
…I’m writing this letter to explain … reasons that make me return to [Country 1]).
The only reason for my trip to Australia, is to see my mother because she’s not feeling so well from the last few months and I haven’t met her for the last 3 years… I have many reasons to return to [Country 1]…. I have a very humble request to grant me an Australian tourist visa that will make me able to see my mother..
The review applicant’s supporting letter
…Application for a Tourist Visa for my daughter”
I am [name], a permanent Resident of Australia, I would like to invite my daughter [name] ….
It has been few years since I have seen my daughter so I would like to invite her to spend some time with me here in Australia because my health condition is not so well. I am diabetes patient and have migraine too, few months earlier I had covid 19. After covid infection my health problems got more complexity. I want to see my daughter and want to spend some time with her.
She intend to stay with me at my house for 3 week, from June 30 to 20 July 2022. Her housing and food cost during her stay will cover by me. She will cover all costs for her trip...
The visa applicant wrote to the Department concerning the request for her biometric details – she asked for an extension of time, and provided further claims in support of her visa application, in her undated letter received on 28 April 2022:
….Could you please extend the period my visit to your office for making my biometric details. …That visa very important for me. I do it first time, I didn’t have any experience. I provide the documents my mother is sick now. I want to see her. ……
I turn back to [Country 1]. I stay here long time and after 1 year I will apply for citizens of [Country 1].
The Department forwarded a natural justice letter to the visa applicant dated 4 August 2022 stating:
The Department has conducted checks to confirm the information you have provided in your current application. During this process, we have received unfavourable information, which does not support your application.
The Departmental records show that the applicant has a sister in Australia who is not an Australian citizen and has a pending application with the Department. Exclusion of such information raises concerns that the applicant provides misleading information on purpose to avoid any adverse impact on applicant’s pending visa application.
You may provide comment on this information.[7]
[7] Quoted from the natural justice letter: information to the is effect is included in the delegate’s decision record provided to the Tribunal by the applicant
The visa applicant’s response included the following:
The honourable visa officer mentioned in the letter that according to the immigration records, I have a sister in Australia who is not an Australian citizen and has a pending application with the Department. It is also mentioned that the exclusion of such information raises concerns that I provided misleading information on purpose to avoid any adverse impact on my pending visa application.
My Justification
The honourable visa officer asserted that I excluded information about my sister. I would like to object that there is no question in the visa application form that requires me to give an answer to this question. If there was a question about mentioning the details of my family members in Australia, I would have definitely mentioned her details. Therefore, it is unreasonable to assert that I hid any information as I was never asked to mention such information in the visa application form.
While there was no question in the application form requiring me to mention the details of my relative in Australia, there was a question asking me…. if I plan to VISIT any relatives, friends or contacts in Australia. ….
I mentioned my mother here because I will only be meeting my mother and then come back to [Country 2] to continue my job here. I have no plans to visit my sister, therefore, I did not mention her details. It should not be assumed by the honourable visa officer that I must have to visit my sister if I come to Australia, it is my personal choice whoever I visit in Australia and I only plan to visit my mother.
I would like to conclude that there is no question in the application form that requires me to detail my relatives living in Australia so the claim that I hid their information is unfounded. I would have definitely mentioned her details if I was required to mention them in the application form.
I also want to respectfully state that my circumstances are stable in [Country 2] as I have been employed in a lucrative job over here and I am financially sound and stable. I do not have any incentive to remain in Australia even if my mother and sister are in Australia. They are living their own lives and I am living my own life and satisfied with it. Being a daughter, I have a natural urge to meet my mother so it is reasonable to apply for this visit visa which will allow me to meet her and spend some quality time with her…
To sum up this letter, I would like to state that based on the Natural Justice letter, the claim that I hid my sister’s information is unfounded. I would therefore request the honourable visa officer to grant me a visitor visa so that I could meet my mother and then come back to [Country 2] to continue my job here.
The delegate’s decision record
The delegate considered that on 21 April 2022, the visa applicant provided evidence to the Department that was considered to be of a 'non-genuine' nature. The delegate stated that the visa applicant's response was not neither a plausible account of events, nor substantiated by any evidence available. The delegate considered that the visa applicant’s exclusion of such information (about her sister) raised concerns that she provided misleading information on purpose to avoid any adverse impact on her visa application. The delegate was of the view that the visa applicant does not satisfy PI04020(1). When considering the waiver, the delegate acknowledged that the visa applicant has stated that they wish to reunite with their family members who reside in Australia and who they have not seen for a long time. Whilst this was acknowledged, this is not in itself a compelling or compassionate circumstance. There is no impediment to the visa applicant reuniting with family either in their home country or in a third country. The delegate was not satisfied that the circumstances of this case can be considered compelling and compassionate, and they did not support a waiver of the PIC 4020(1) requirement.
The Tribunal
The review applicant was invited to attend a hearing before the Tribunal and was requested to provide background information about her family members.
She provided submissions dated 20 July 2023 which included the following:
·     [One] daughter is [Daughter A] born [date] came with her to Australia in August 2018 and they both lodged protection visa applications on the basis of religion in Australia. They were granted permanent residence status in July 2020. They never stayed unlawfully in Australia.
·     [Another] daughter is [Daughter B] born on [date]. She was married to an Australian citizen and was sponsored [to Australia] by her husband in 2016 and was granted permanent resident status. She is now a citizen of Australia. She divorced her husband in 2021, remarried with a son and is sponsoring her new husband to migrate to Australia.
·     Her two daughters never stayed beyond the validity of their visas nor entered Australia illegally.
·     Her husband [named] is in Karachi, Pakistan living with his elderly mother and he doesn’t plan to join her in Australia while his mother is alive.
·     She has [other children] and [one] son, [named] is currently residing in [Country 3] where he will be granted permanent resident status in [Country 3] in the near future. [Another named child] is currently in [Country 4] on a work visa. [They] applied for a student visa to Australia between 2013 or 2014.
·     None of her other close relatives entered Australia and stayed beyond the validity of their initial visa or have lodged a temporary or permanent visa application.
·     The visa applicant is currently in [Country 1] on a work visa from 2011 and travels to Pakistan frequently to be with her father. She works at a [business 1] as [two occupational roles] for the last 11 years. She is unmarried and plans to marry her fiancé, [named] in Pakistan and sponsor him to [Country 2] after marriage. She is earning well and plans to settle in [Country 1] after the marriage with [him].
·     The visa applicant wished to visit the review applicant and her [grandchild] in their family before she returns to Pakistan for the marriage.
·     The visa applicant never gave any bogus document with her application for a visitor visa. She has never given any misleading information in relation to the visitor visa. When she was asked to provide more information, her daughter who made the application informed the department that the review applicant was the contact person and intended to visit her. [The visa applicant] genuinely did not understand that she had to give details of [Daughter A] and [Daughter B] who were living in Australia with the review applicant. The officer refused her visa just because [the visa applicant] failed to give her sister [Daughter B’s] details. [The visa applicant] never had any intention to give false or misleading information to the department. [The visa applicant] was concerned about the review applicant’s health and longed to see her in Australia. The review applicant’s daughter, [named], couldn’t provide the details the officer expected from her as she is not conversant with the immigration practice or procedure [emphasis added].
The Tribunal hearing 28 July 2023

The applicants both gave evidence. The review applicant confirmed that at the time the visa application was lodged, her two daughters [Daughter B] and [Daughter A] were living with her in the same house. When asked, the review applicant said that both she and [Daughter A] had arrived in Australia with visitor visas and then claimed protection. The review applicant said that at the time of the visa application lodgement she and her two daughters in Australia were in contact with the visa applicant.
The Tribunal put to the review applicant that, relating to [Daughter B], the visa applicant did not declare in her form that in addition to visiting the review applicant, she was also going to visit [Daughter B]. In response the review applicant said yes, [the visa applicant] had made this mistake. The review applicant continued that this was the first time that the visa applicant was completing an application form and because her mother was listed as someone she would visit, the visa applicant understood that she intended to visit her mother as well as [these] two sisters.
The Tribunal put to her that the visa applicant’s written response to the natural justice letter was inconsistent with that; in that response the visa applicant had claimed that she did not intend to visit her sister ([Daughter B]), she had only intended to visit her mother. In response the review applicant said that this is the first time the visa applicant did the application and she is apologetic. The Tribunal said this was not the explanation offered in the response to the natural justice letter (that she had made a mistake when saying she did not intend to visit [Daughter B]); the visa applicant’s written response had instead insisted that she had not intended to visit [Daughter B]. In response the review applicant said that this is the first time the visa applicant has responded to a letter and she also made a big mistake there as well. The visa applicant doesn’t understand English and she just got the words from google. The Tribunal put to the review applicant that it seems difficult to accept that the visa applicant had no idea what she was saying in her written response to the natural justice letter.
At one stage it appeared that the review applicant may have been suggesting that the visa applicant had not mentioned visiting [Daughter B] because when the visa application was lodged, [Daughter B] had already left Australia for Pakistan for her second marriage. The Tribunal sought clarification and she then said no, at the time of the visa application [Daughter B] was living with her; she went later to Pakistan to get married (she was there at the time of the response to the natural justice letter). The visa applicant gave the same evidence. It was not claimed that [Daughter B’s] travel to Pakistan was a reason for [Daughter B] not being declared in the visa application form as a person that the visa applicant would visit.
The Tribunal put to the review applicant that the failure to declare an intention to visit [Daughter B] was not the only concern, because when the visa applicant made her application, she failed to declare two sisters she was going to visit, both of whom lived with the review applicant, so the visa applicant would have been visiting them both her sisters as well as her mother. In response the review applicant said that this is the same principle which normally people apply in Pakistan, they only mention parents’ name. The Tribunal noted that there was no suggestion that the form only asked for the name of a single person; it also does not accept this explanation given also that this was not the explanation given in the written response to the natural justice letter; that response contained claims that the visa applicant had not intended to visit her sister (singular; the letter contained no mention of her other sister’s presence in Australia).
The Tribunal put to the review applicant that even in her own letter to the Department, she only mentioned the visa applicant visiting herself; the review applicant at no time suggests that the visa applicant will also be visiting her 2 sisters who live with the review applicant. In response the visa applicant said that this is the first time she is involved in communication and [Daughter A] helped her. The Tribunal put to her that when reading her support letter and the visa applicant’s support letter and the accompanying visa application form, the only indication given is that the visa applicant will visit the review applicant.
The review applicant responded that the visa applicant’s omission to mention that the visa applicant was visiting her two sisters as well as her mother was an unintentional mistake.
Concerning the reasons for the documentation submitted to the Department, the visa applicant gave similar evidence to that of the review applicant: mistakes, her English is not good and she used google, she mentioned her mother and she did not mention her sisters who were living with her mother, she had intended to visit them all, it was an error.
The Tribunal put to the applicants that it had concerns with and may not accept the explanations, including the new claim made by the review applicant (supported by the visa applicant) that the visa applicant did not know what she was submitting to the Department.
Both applicants submitted that all the documents submitted with the application are all true none are bogus. The Tribunal noted that it was not considering the issue of bogus documents.
The Tribunal noted it had further concerns with the reliability of the review applicant’s evidence and submissions, which arose when considering her claims above, as well as when it discussed with her how she herself came to Australia (having obtained a visitor visa, she then stayed and claimed protection). The review applicant’s submission to the Tribunal dated 20 July 2023 stated:
When I was arrested by the police and [Daughter A] was taken to a Madrassa and forced to marry a Muslim guy against her wish, my husband and other children decided to send us out of Pakistan. [Daughter A] was a teenager and after my husband realised his mistake, he sent [Daughter A] and I, out of Pakistan before I was punished under Sharia Law in Pakistan for converting to Christianity. On our arrival, I lodged the protection visa application with the help of my [Daughter B] and we were granted the permanent status in Australia in 2020.
Having read this, the Tribunal put to the review applicant that when she and [Daughter A] both sought visitor visas to Australia, they would have represented to the Department that they intended to just visit Australia, however this does not appear to have been true, because she and her daughter did not intend to return to Pakistan. The review applicant said in response firstly that we could not go back, then she said they had return tickets, then she said they had intended to return to Pakistan after visiting Australia. The Tribunal put to her that this was changed evidence from what she had claimed in her submissions to the Tribunal, which was that her husband had sent them out of Pakistan, and the review applicant had to escape Pakistan or she faced being punished in accordance with Sharia law for having converted to Christianity. The Tribunal put to her that her submission did not indicate that she and [Daughter A] had ever intended just to visit Australia and return to Pakistan. The review applicant did not provide a satisfactory response: she said that she is not changing her evidence, she is just saying what happened. The Tribunal was concerned that the review applicant was prepared to change her evidence.
Further, the Tribunal noted that the review applicant’s 20 July 2023 submissions stated that she and her daughters had not stayed illegally in Australia nor beyond the validity of their visas. The Tribunal put to her that the submissions did not disclose that both she and [Daughter A] had been granted visitor visas (the same visa sought for her daughter the visa applicant), and upon arrival in Australia with those visitor visas, both she and [Daughter A] had claimed protection.
The review applicant asked the Tribunal for kindness so that the visa applicant can see her mother and sisters. The Tribunal finds that, at the time of the visa application, it was the intention that the visa applicant visit her mother as well as the two sisters who lived with her mother. The Tribunal is not satisfied with any of the explanations provided. It does not accept that this was a mistake, due to English, google, or that in Pakistan the visa applicant would only say she was visiting a parent. The Tribunal finds that the supporting letters of both the visa applicant and the review applicant specifically only refer to the visa applicant visiting her mother in Australia. The Tribunal does not accept that this is because of difficulties in communication. The Tribunal also finds that the letter provided by the visa applicant in response to the natural justice letter provided a clear and particular argument, using the English language in a sophisticated manner to distinguish between the requirement to disclose the existence of relatives (which she said she was not required to declare in the application form but would have had she been so required) v. the intention to visit relatives (which she said she did correctly answer in the application form because she had no intention to visit her sister in Australia). The Tribunal does not accept that the clear intention of the visa applicant, provided repeatedly to the Department, in the visa application form and supporting letters, and then in response to natural justice letter, that she only intended to visit her mother, was an error. The Tribunal finds that the failure to disclose that she had two sisters in Australia living with her mother whom she intended to visit because she was going to visit and stay with her mother, was deliberate.
The Tribunal finds that when the visa applicant stated, in her visa application form, that the only person she intended to visit in Australia was her mother, this was untrue, because she also intended to visit her two sisters who were, at the time, living with her mother. This is the correct information. The information given by the visa applicant was deceptive, intentional, and it was false and misleading.
False or Misleading information in a material particular at the time it was given
Having regard to the findings above, the Tribunal finds that the information that the visa applicant gave to the Minister and/or an officer was false and misleading at the time it was given (namely at the time of lodgement of the visa application on 21 April 2022).
The Tribunal finds that the visa applicant caused false or misleading information as contemplated in PIC4020(5)(a) of the Regulations to be given to the Minister and/or an officer.
False or Misleading Information in a material particular relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information
The Tribunal put to the review applicant that the visa applicant when making her visa application did not disclose that she intended to visit not only her mother in Australia, but also her 2 sisters, including one of whom who had arrived in Australia with a visitor visa and had then claimed protection. The Tribunal put to her that the presence of her sisters and her mother was a strong incentive for the visa applicant to stay in Australia and this had not been disclosed. The Tribunal put to her that this was relevant to the criterion cl.600.211 which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted[8].
[8] Having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter
In response she said that the failure to declare was a mistake. The Tribunal has not accepted that this was a mistake.
The Tribunal finds that the visa applicant gave false or misleading Information in a material particular relevant to the criteria the Minister may consider when making a decision on an application, namely the criteria of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal finds that the omission of the information is directly relevant to a criteria for the grant of a Visitor Visa.
Therefore the Tribunal finds that the false information and omission in the visa applicant’s application is relevant to cl.600.211 which the Minister or the Minister’s delegate may consider when making a decision on the application. The Tribunal finds that the false or misleading information provided by the visa applicant to the Minister and/or an officer in relation to the application was false or misleading information in a material particular.
The Tribunal finds that the visa applicant caused false or misleading information in a material particular as contemplated in PIC4020(5)(b) of the Regulations to be given to the Minister and/or an officer.
Finding on PIC4020(1)
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. The determination of whether circumstances are compelling or compassionate is essentially one of subjective judgement which takes into account all of the circumstances[9]. Generally, having regard to the ordinary meaning of the words, ‘compassionate’ means ‘having or showing compassion’ and ‘compassion’ is ‘a feeling of sorrow or pity for the sufferings or misfortunes of another; sympathy’[10]. Whereas ‘compelling’ is ‘demanding attention or interest; convincing’[11] and may include ‘to urge irresistibly’ and to ‘bring about moral necessity’. For example, in Singh v MIBP,[12] the Court commented that ‘compelling circumstances’ are limited to those which have a special or strong persuasive force[13], and, relying on earlier authorities, referred to circumstances ‘evoking interest, attention … in a powerfully irresistible way’, that ‘must be so powerful’,[14] or force or drive the Tribunal ‘irresistibly’ to be satisfied.[15]
[9] Anani v MIMAC [2013] FCCA 1140 at [34]. While related to s.41(2A) and r.2.05(4), it appears applicable to
[10] Macquarie Dictionary. Considered in Kaur v MIBP [2018] FCCA 1614 at [24].
[11] Macquarie Dictionary
[12] 2016] FCA 156.
[13] Singh v MIBP [2016] FCA 156 at [20].
[14] Singh v MIBP [2016] FCA 156 at [21]-[22], citing Babicci v MIMIA [2004] FCA 1645 and Babicci v MIMIA
(2005) 141 FCR 285
[15] Singh v MIBP [2016] FCA 156 at [23]-[24], citing Plaintiff M64/2015 v MIBP [2015] HCA 50
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The review applicant informed the Tribunal that there were no compelling circumstances that affect the interests of Australia, and the Tribunal so finds.
Thus, the circumstances must affect the interests of Australia, an Australian citizen, permanent resident or an eligible New Zealand citizen, and it is not sufficient for the purposes of the waiver that there are compelling or compassionate circumstances alone. They must justify the grant of a visitor visa.
The review applicant said that she is the relevant permanent resident of Australia to consider when assessing whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa.
At the time of the visa application, the visa applicant provided to the delegate with her application medical documents from the review applicant’s GP stating that she was examined on 11 April 2022. She is a diabetic patient. She recently has had COVID infection and is recovering it, with post covid infection ongoing symptoms. She would like her daughter to visit and support her during her recovery period.
In her prehearing submissions the review applicant referred generally to her health and wellbeing, without specifying any health conditions, and by the time of the hearing the review applicant did not provide any updated medical reports; she just said that she has upcoming eye surgery. The Tribunal is prepared to accept that the visa applicant visiting her mother would be positive for the review applicant’s wellbeing.
In her prehearing submissions the review applicant also stated that she wishes to see her daughter before she gets married and settled in [Country 1]. After her experience with her [other] daughter’s marital problems, she does not wish to miss the opportunity to meet her [named daughter] before she marries a muslim man from Pakistan. She does not wish that [the visa applicant] faced the same problem [Daughter B] faced from her husband after [Daughter A] and she converted to Christianity.
At hearing the review applicant said that she has not seen her daughter for 9 years, and humans can make mistakes. The Tribunal put to her that she could travel and see her daughter in another country; in response she referred to her upcoming eye surgery. She said also that her Pakistan passport has expired. She did not suggest that she is unable to obtain a travel document. The Tribunal put to her that it has had concerns with her credibility and it is not sure that it accepts her submissions as to why there are compelling or compassionate circumstances affecting the interests of an Australian permanent resident (the review applicant or even her daughter [Daughter A]) or an Australian citizen ([Daughter B]). While it is prepared to accept that the review applicant has been in Australia and has not seen her daughter for a period of time, and that she will have upcoming eye surgery and she may have an expired passport, it does not otherwise accept her submissions as it does not accept that she is a reliable witness. The Tribunal is not satisfied that there are compelling or compassionate circumstances affecting the interest of any or all of the family members justifying the grant of a visitor visa to the visa applicant.
The Tribunal is not satisfied that the requirements of PIC4020(1) should be waived.
Therefore the requirements of PIC 4020(1) should not be waived.
Conclusion
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 600.213.
DECISION
The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.
Christine Cody
Member
Commentary
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.…

PIC4020(4). See also McNamara v MIMIA [2004] FCA 1096 per Whitlam J at [10].