Mohammed (Migration) - [2023] AATA 3076

Mohammed (Migration) [2023] AATA 3076 (14 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mohammed Mohammed
VISA APPLICANTS:  Mrs Eftu Abdurezak Mohammed
Master Mohammed Kedir Abdurazak
Master Abdunaser Kedir Abdurazak
Master Abdurazak Kedir Abdurazak
Master Bahar Kedir Abdurazak
Miss Monan Adnan Amin
Miss Fenan Adnan Amin
REPRESENTATIVE:  Dr Abeba Gebreselassie (MARN: 1791364)
CASE NUMBER:  1917656
DIBP REFERENCE(S):  BCC2018/1729957
MEMBER:Anne Grant
DATE:14 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Migration Regulations.

Statement made on 14 September 2023 at 11:59am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – bogus document – school records – member of the family unit – compassionate or compelling circumstances – financial hardship and business disruption – awareness of each other’s financial position – regular travel to Ethiopia – care for orphaned children – genuine and continuing relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 309.225; Schedule 4, Public interest Criterion 4020
CASES
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIMAC [2013] FCCA 1435
Sun v MIBP [2015] FCCA 2479
Sun v MIBP [2016] FCAFC 52
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 Immigration on 21 June 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (referred to as the primary applicant) applied for the visa on 19 April 2018 on the basis of their relationship with their sponsor, the review applicant (referred to as the sponsor). At that time, Class UF contained only one subclass: Subclass 309 (Partner) (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria.
The sponsor appeared before the Tribunal on 25 August 2023 by video conference using the Microsoft Teams Application. The sponsor was originally invited to attend the hearing in person but on 4 August 2023 his representative advised the Tribunal that he was overseas visiting the primary applicant and they would both like to participate remotely in the hearing. The hearing was converted to a video conference as a result. The review applicant and the visa applicant both participated in the hearing by video using the Microsoft Teams application and gave evidence separately with the assistance of an Amharic interpreter.
The sponsor was represented in relation to the review, and the representative also attended the video hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The delegate refused to grant the visas on the basis that the primary applicant did not satisfy cl.309.225 because they found she did not satisfy public interest criterion (PIC) 4020 which provides:
PIC 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 Migration Review Tribunal, 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 the application;
the applicant and each member of a family unit of the applicant has not been refused a visa
because of a failure to satisfy the criteria in subclause (1).
(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.
Bogus document
Bogus document in relation to a person means a document that the Minister reasonably
suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made
knowingly.
The issues in the present case are:
· whether there is ‘no evidence’ that the applicant has given, or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application for the visa; and if there is such evidence;
· whether 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 and the waiver of the requirements in PIC 4020(1)(a) or (b) and /or subclause(2).
Is there evidence that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular?
According to the departmental file, the primary applicant lodged school records for some of the secondary applicants with the applications for the visas, including one for Abdunaser Kedir Abdurazak (AKA). The purpose of this information was to support the primary applicant’s claim that the secondary applicants (her daughters and nephews) were members of the primary applicant’s family unit, a criteria which must be satisfied for the grant of a visa to a secondary applicant in the circumstances of this application.
According to the departmental information, a physical check of the school records was conducted for two of the secondary applicants on 27 December 2018 through representatives in Ethiopia. The school confirmed that the school records and information provided for one of the primary applicant’s daughters were genuine, but the school advised the departmental representative that the document relating to AKA did not originate from the school as claimed and that that applicant was not known to the school.
On 30 January 2019, the primary applicant was invited to respond to this adverse information and on 27 February 2018 she responded as follows:
“……….I refer to your letter dated 30 of January 2019 regarding adverse information and I
would like to make things clear as follows
You have stated that you have contacted the school in Adama, and that the School
document I have submitted for [AKA] did not originate from Naaf
yaad school. I was really shocked to hear this and would like to reaffirm that the document
provided was not fraudulent and it was originated from the school.
I approached the school upon hearing this news from you, I was socked and as the same
time got sick. Up on approaching the school they had to do their won investigation as what
went wrong and did apologize to me for failing to provide the right information when asked
by the body concerned. It is their responsibility the way they manage their files or keep their
data. They have however reassured me that they would do what ever it takes to make sure
that this will never happen again.
I have been provided with a letter from the same school explaining what happened and
apology as well.
I am 100 % sure that I was given the document from that school and providing a bogus
document would lead to refusal of my application. I want you to believe me and also re
check the document at your convenience or call the school and ask for more information. I
do apologize for the inconvenience this has caused and I hope this information may help. It
doesn’t also make sense that only Abdunaser’s document is the only one missing out of the
all the children, he is my nephew as the others and it was just a mistake.
I do beseech your co-operation to double check the authenticity of the document of the school and the nature of the check………..”
The primary applicant provided a letter which claims to have been issued by Vice Director – Netsanet Getachew Lakewu from Nafyad School. The letter states as follows:
To the Australian Immigration Nairobi Kenya
I refer to the background checks conducted against documents that has originated from our
school and Eftu Abdurezak Mohammed has provided you in regards to here of her nephews
from our school,
Eftu approached our school with letter of natural justice sent to her on 30**’ of January 2019
claiming that she has provided a bogus document which may affect her application; she
couldn't hold up her tear and was terrified.
Upon reviewing the documents and how it was conducted, we found out the the documents
were not properly checked, three of her kids are studying at our school including Abdunaser
Kedir Abdurazak, We found out the Abdunaser's document have been located with another
officer as the file were moved by other officer for official reasons, our officer should have done
it properly so our clients should not go through this problems for the problems they have not
created.
I would like to reaffirm that the Abdunaser's Kedir Abdurazak's document presented were
genuine and originated from our school. It was never bogus, and would like to apologize for
the inconvenience that our school has created, if need be, you can come to our school at anytime to reconduct a check.
It is noted that the signature and stamps attached to the response letter are the same as those on the document which is said to have been ‘bogus’.
In a statement accompanying a submission made to the Tribunal prior to the hearing, under the heading “Statement about school document” the primary applicant included the following information:
… I confirm here that his school document is not bogus. Please consider my explanations below:
1.Same school for my daughters and nephews: My daughters studied at Nefyad School, and I enrolled my nephews at Nefyad school as well. The school is relatively good for academic quality. All my four nephews are studying at Nefyad. If needed, I am willing to provide copies of the school record for my daughters and for my nephews…
4.Record Keeping in Ethiopia: the Department of Home Affairs only checked my daughter’s school record and only one of my nephews. However my other two nephews back then and currently all my four nephews are studying at the same school. I wish checking the school documents was done by some scientific method so that we could prove that it is genuine as we have not provided any bogus documents. In that, if there was a more accurate method of checking school documents, I would gladly accept the offer. The Immigration Officer checked at the school only once. Unfortunately, the school system and the record keeping system at the school is not computerized and during the checking time, they were unable to easily locate Abdunaser’s school record, and simply only on one isit, the Department of Home Affairs decided that we provided bogus documents. However, it should be noted that I personally do not have any control over the school documentation system. Not only at this school, but also at many other schools in Ethiopia, the documentation system is not computerized. This is true for so many other sectors in the country including hospitals and courts. The documentation system is manual and if for some reason a file is in a different place, it will be impossible to find it – especially with one visit.
5.Explanation from the School – The fact is that my nephews have been studying at Nefyad School and they are still studying at Neyad School. The school has provided an explanation as to why it was not possible to locate Abdunaser’s school record. The Department of Home Affairs should have re-considered their decision as this is something which is not under my control. …
On 25 March 2023 the Tribunal received a certificate pursuant to s 376 of the Migration Act notifying the Tribunal of an allegation received on 17 January 2020 by the Department. The department certified that disclosure of the material would be contrary to the public interest because it may disclose or enable a person to ascertain the existence or identity of a confidential source of information.
On 11 July 2023 I wrote to the applicant providing them with the following information in relation to the allegation and invited them to respond:
The Department has provided to the Tribunal a certificate under s.376 claiming nondisclosure
of a particular document on the Department’s file. The certificate is attached. The Tribunal’s preliminary view is that the certificate is valid but you are invited to make submissions on the validity of the certificate if you wish to do so.
Regardless of the validity of the certificate, the Tribunal has had regard to the
information and the details provided in the certificate, and has decided that the
information in the document covered by the certificate is adverse information which
must be given to you under s.359A of the Act, in order that you have an opportunity to
comment on or respond to it.
The allegation was made online to the Department on 17 January 2020 at 5:30 am.
The person making the allegation is not named and so the Tribunal is unaware of the
name of the person who made the allegation; however, the person claims to be
personally known to both the review and primary visa applicants.
The allegation claims that the primary visa applicant and the sponsor have entered a
contrived marriage for the purpose of obtaining visas for the applicants. The main
substance of the allegation is as follows:
A WOMAN BY THE NAME OF EFTU ABDURAZAK FALSELY MARRIED A MAD (sic)
CALLED MOHAMMED BUSHRA FOR THE PURPOSE OF TAKING HER TWO
FEMALE KIDS BY THE NAME OF FENAN AND MONAN AND HER BROTHERS KIDS
4 OF THEM BY NAME ABDULNASEIR,ABDURAZAK,BAHAR AND MOHAMMED
KEDIR. THEIR MARRIAGE IS A SHAM AND THEY ALL FALSIFIED DOCUMENTS
ABOUT THE FATHERS SITUATION. THEIR FATHER IS ALIVE AND WELL AND
RICH CAN SUPPORT MORE THAN TWO FAMILIES AT LEAST. AND THE WOMAN
BY THE NAME EFTU ABDURAZAK HER FIRST HUSBAND DIED AND SHE IS
MARRIED TO ANOTHER MAN BESIDES MOHAMMED BUSHRA. PLEASE DONT
LET THIS KIND OF PEOPLE IN TO YOUR COUNTRY.
The person also claims direct knowledge of the fabrication of documents in support of
the visa application.
This information is relevant because it claims that the primary visa applicant and the
review applicant have knowingly provided false or bogus information and documents,
which is the primary issue being considered in this review. The Department found that
the primary visa applicant had provided bogus documents in support of the visa
application. Further, it is relevant to the issue of the parties’ credibility because if the
Tribunal were to give weight to the information in the allegation, and (subject to your
response to this notice and the Tribunal’s consideration and assessment of other
evidence and information provided), it may make a finding that the relevant documents
submitted to the Department were bogus documents and that the parties knew that
they were bogus.
Further, if the Tribunal were to give weight to the allegation, it may make a finding that
the primary visa applicant and review applicant are not credible witnesses, and reject
some or all of their evidence. In that event, the information and the consequences of it
being relied on could be the reason or one of the reasons which would lead to the
Tribunal refusing to waive the requirements of any or all of paragraphs (1)(a) or (b) of
Public Interest Criterion 4020 as described in paragraph (4) of the relevant public
interest criterion.
This information may therefore be a reason, or part of the reason, for the Tribunal affirming the decision under review.
On 25 July 2023, the Tribunal received a response to the notification under s.359A. The review applicant stated that the relationship between him and his wife is genuine and continuing and then states as follows:
The allegation which the Department of Home Affairs received on 17 January
2020 is baseless and it is not supported with any evidence. Anyone can make
such type of allegations. We believe the person who made the allegations should
bring evidence if the allegation is true. We believe the allegation is made by
someone who knows us so that they know the names of the children and the
family members. We believe that this person is not happy to see us getting
married and living a happy married life. Unfortunately, there are people who
want to destroy peoples marriage for no reason. In that we do not accept the
allegations as we are truly married, and our relationship is continuing. I have
been communicating with my wife, I have sent money to my wife, and I have
visited my wife and my stepchildren in 2015, 2017, 2022 and 2023. As the visa
was refused, we are forced to continue our long-distance relationship. Despite
that, our marriage is going strong, and we are happy together and we strongly
hope that one day we will be living together just like any other married couple.
I noted that the relevant provisions of PIC 4020 require me to find that ‘there is no evidence’ that the applicant has given or caused to be given to the department ‘a bogus document’. It does not require me to make a final finding about whether the documents were bogus or not, and I advised the applicants that was how I would proceed in this review. I noted that it appeared to be clear that there was ‘some evidence’ (even if it is disputed as noted above) that the applicant had provided a bogus document with the application for the visa. Firstly there is the evidence of an agent of the Department making physical enquiries at the school, and being provided with a statement directly from the school stating that the relevant document did not originate from the school. Further, there is the content of the allegation which also refers to the creation of fake documents. I informed the parties that in my view, it seemed clear in this case, that there was ‘some evidence’ that the primary applicant had provided a bogus document.
I asked why additional evidence from subsequent academic years and or even from other authorities had not been provided in support of the child being a dependent child of the primary applicant. The primary applicant stated that she had also provided the court document which confirmed her guardianship, and she had provided updated educational information to her representative, and it could definitely be provided to me if necessary. It was noted that this review would not determine the status of the secondary applicants as ‘members of her family unit’ and that I was making a decision with regard to PIC 4020 alone, so if the decision was favourable and the matter remitted back to the Department, she should take advice from her migration agent about establishing the membership of family unit for all the secondary applicants, as well as any other matters associated with the secondary applicants, and providing updated information about those issues at that time.

I have had regard to the information and evidence before me. I consider that in this case there is some evidence which suggests that the school documents provided in respect of the secondary applicant AKA are bogus documents, fabricated to add weight to the primary applicant’s claim that the child was attending a local school and a member of the primary applicant’s family unit.
PIC 4020 only requires evidence that a bogus document has been submitted, not that a document that has been submitted is bogus. Therefore, if a document which is found to be bogus under the ‘relatively undemanding test’ of ‘reasonable suspicion’ has been submitted in connection with a visa application, no more is needed to show that there is ‘evidence’ of the sort referred to in PIC 4020(1).[1]
[1]Singh v MIMAC [2013] FCCA 1435 at [25]; cited with approval in Sun v MIBP [2015] FCCA 2479 at [27]. Judge Jarrett’s reasoning in Sun was approved on appeal: Sun v MIBP [2016] FCAFC 52 per Logan J at [21]. In Sun the Full Court rejected an argument that the requirement that there be ‘no evidence’ imposed an onus or burden on the Tribunal of proving that a document was bogus, per Flick and Rangiah JJ at [73]–[75], Logan J agreeing.
There is the direct evidence from the relevant school as communicated to the Department’s representative and there is also the allegation made to the Department in 2020 that the primary applicant has provided fake documents to the Department.
I find that there is some evidence before me that the primary applicant has given to the Department a bogus document in relation to the application for the visa.
Should the requirements of paragraphs 1(a) or (b) be waived?
4020(4)(a) - Compelling circumstances that affect the interests of Australia.
The parties did not argue that there are any compelling circumstances in this case that affect the interests of Australia, and none are disclosed on the information and evidence before me. I find that there are not compelling circumstances that affect the interests of Australia that justify granting the visa, so subparagraph 4020(4)(a) is not met.
4020 (4)(b) Compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.
The information and evidence given by the parties at hearing suggests that the sponsor’s interests will be significantly affected in the following ways if the requirement in paragraphs (1)(a) or (b) of PIC 4020 are not waived.
Firstly, because the marital relationship is genuine, he will be deprived of the love and emotional support, and the physical presence of his wife and step-children in Australia.
Secondly, if the visa is not granted, in order to see his wife and step-children, the sponsor will be required to continue to travel frequently overseas to visit them and to support them from Australia, both of which will cause the sponsor financial hardship and take him from his business, thereby affecting his financial interests.
Thirdly, in the event that the visas are not granted, and the sponsor decided to move to Ethiopia, he would be without work, have to leave his family in Australia (including his adult children and young grandchildren) and he would therefore suffer a different financial loss as well as the loss of regular contact with and emotional support of his Australian family.
The ongoing genuine relationship of the primary applicant and sponsor is therefore advanced by the applicant as a compassionate or compelling circumstance that affects the interests of an Australian citizen, the sponsor. It is submitted that theirs is a genuine and continuing relationship and they wish to be granted a visa so that the family can be united in Australia. Accordingly, I discussed the various aspects of the relationship with the parties at hearing in order to satisfy myself of the circumstances of the relationship and assess how and whether the interests of the sponsor would be affected if the visa was not granted.
The evidence reflects that the sponsor has been financially supporting the applicants by regular remittal of money to the primary applicant in Ethiopia and that he will continue to do so, even if the visa is refused. Documents showing many transfers of money to the primary applicant and the sponsor’s family have been provided. It is claimed and I accept that money is remitted both directly (via money transfer) or by sending to the sponsor’s father who then passes it to the visa applicant to avoid people in the community becoming aware that the primary applicant has a source of foreign income and becoming a target of extortion or blackmail. At hearing the visa applicant said that the sponsor is her sole source of income and support for herself and the children. She receives no support from anyone else, including her family. She relies on the sponsor to provide for them. The sponsor confirmed this evidence. He continues to be the sole financial support for her when he is living with them in the country, and will continue to do so as her husband and the children’s father, regardless of visa outcome.
The primary applicant said that as far as she knew, the sponsor does not have any major debts. She similarly has no debts.
The primary applicant gave evidence that she owns the home in which they live. It has three bedrooms. The boys share one bedroom, the girls share one and she and the sponsor have their own room. She also noted that some years ago, she had a dispute with a neighbour over the boundary. She believes it is possible that person is spreading malicious lies about her and may be the person responsible for the allegations made about their relationship not being genuine. The sponsor had a different view, and said he found it hard to believe someone would go to such extremes over an old land dispute, and that he thinks it would be more likely to be someone in their family or community who is jealous and not happy to see them happy.
The primary applicant said that if granted a visa, she intends to sell the property to help them establish the family in Australia. The sponsor knew that the visa applicant owned the property and when asked what would happen to it in future, he responded that ‘we will sell it’ when she moves to Australia. The applicant gave evidence that the sponsor always lives with them when he comes to Ethiopia. He has come several times over the years. His family have visited them and stayed with them also. This information was confirmed by the sponsor.
The primary applicant gave evidence that she intends to work as a nurse in Australia, and will do whatever is necessary to update her qualifications when she gets to Australia. This was confirmed by the sponsor, who said that his wife is very keen to work and he would like her to do what will make her happy.
Both parties gave evidence that they will pool their income and resources and ‘have everything together’ when they live as a family in Australia.
The primary applicant knew a little about the sponsor’s business – that he ran a transport business with his own trucks and drivers. She knew that he was living in a rental property and when they joined him that he would rent a larger property that they could all share. This was generally confirmed by the sponsor who said he has a transport company which employs five drivers. He owns the three trucks that they drive, noting that he had to sell some trucks as the pandemic had negatively affected his business. He owns no real estate and confirmed that he will rent a new bigger property when the primary applicant and children arrive.
Consideration of the financial aspects of the relationship reflects that even though they do not live together full time, the parties are aware of each other’s basic financial position and have plans for the future, and that the sponsor is the sole source of income for the primary applicant and the six secondary applicants. I consider that the financial aspects of the relationship suggest that the primary applicant and sponsor are in a genuine ongoing and committed relationship.
The parties each gave evidence that their marriage is supported by their respective families and friends. Both of their families originate from the same village in Ethiopia and the families are known to each other. The sponsor has a brother in Australia and he is very supportive of the marriage. (He has provided declarations about the genuineness of the relationship with the application and to the Tribunal). Photographs have been provided of the sponsor with the primary applicant and also with the secondary applicants. I accept that the primary applicant and sponsor present themselves as a married couple by living together and socialising together when the sponsor is in Ethiopia. I accept that everyone important in their respective lives considers them a married couple. The sponsor gave evidence that everyone in their community was invited to their wedding, and supports them.
I note the information in the allegation which claims their marriage to be contrived for migration purposes, that the primary applicant is married to another man, and that the children are supported by their father, who is wealthy. However I note that this allegation is anonymous, not supported by any more detailed information (such as the name of the person alleged to be the applicant’s ‘true’ husband) and the primary applicant and sponsor have provided extensive evidence of their relationship which must be given more weight than an unsupported allegation of this type. I give that claim little to no weight.
Consideration of the social aspects of their relationship provides some weight suggesting that the primary applicant and sponsor are recognised within their families and community to be in a genuine marriage.
The parties have lived separately for most of the time since they married. When together, the evidence is that the primary applicant does most of the cooking and cleaning as she is already doing that for the children. The sponsor assists as needed. The parties each gave evidence that they intend that the household costs and expenses will be met from joint funds, that general household tasks will be shared amongst the family members and that they will share the responsibility of caring for the children. The parties each gave evidence that the sponsor is the only father the children know and that they have built a strong and loving bond with him. He expressed joy at spending time with the visa applicant and the children and stated that he is looking forward to them living together as a family in Australia.
Consideration of the nature of the household adds weight to the parties being in a genuine and continuing spousal relationship.
The sponsor and primary applicant married in 2015. Since then there is clear evidence that the primary applicant has been providing ongoing financial support for the applicants. Further, he has travelled to Ethiopia on multiple occasions and stayed with them at their home for extended periods, at considerable expense to the sponsor in terms of cost and the impact on his business. I consider that the sponsor’s travel history indicates a significant level of commitment on his part to the relationship. I also note and accept their evidence that the primary applicant and sponsor wish to live together and raise their family together in Australia as soon as possible. I consider that the parties have demonstrated by the duration of the relationship, the time they have lived together, (even though they live in separate countries,) and the degree of companionship and emotional support they draw from each other that they are committed to the relationship and each other. I accept that they both consider the relationship to be a long term relationship. The sponsor gave evidence and I accept that he would be seriously affected negatively if the visa was not granted because he loves the primary applicant and all of the children, who see him as their father. He added that the relationship would continue, because it is genuine, even if the visa is not granted. He would not plan to live permanently in Ethiopia because he has family and his business in Australia but he would continue to support them and visit as much (and for as long) as he could. Consideration of the nature of their commitment to one another adds weight to a finding that the parties are in a genuine and committed relationship.
The primary applicant has given extended documentary and oral evidence that she is raising her brother’s four children and her two daughters as their principal carer, with the financial and emotional support of the sponsor. At hearing, she gave evidence that the reason that she took on this role as carer for her nephews was really due to her background as a nurse and because she was very close to the children’s mother. She helped to care for her before she died. Her sister-in-law begged her to take care of the children, because her brother had disappeared before the youngest child was born. His wife was already ill and pregnant when he left. When queried about those circumstances, the primary applicant gave evidence that her brother had initially used all of his resources trying to get the best care for his wife and save her. When he couldn’t do so, he became depressed and disappeared. No one has heard from him since before the youngest child was born. He did not attend his wife’s funeral.
The primary applicant explained that initially after her sister-in-law passed away, her mother lived with and cared for the children, and the primary applicant assisted, travelling between her home and theirs. It wasn’t until she got the court order in around 2017 that they came to live with her. Since then, she has been their carer and mother, and the sponsor has been considered and acted as their father. She explained that she applied to the court herself, with the support of her family, she did not have a lawyer to help her. She wanted to get proof that she was their guardian so the children could have some certainty. Her decision to take on the responsibility for them and their care was also supported by their maternal relatives. Her sister in law’s family live overseas, and although they had provided some support for the children whilst she lived, they stopped providing any support at all once she had died. The children therefore had no one else to care for them.
I asked the primary applicant what would happen if her nephews were refused a visa. She said she would be devastated, because she and the sponsor are the only family they have who care for them and support them. She said that without her they would be homeless. The primary applicant said that she would be very worried for the children if they were not granted a visa, worried that they would ‘break’ as they have already lost their parents and would fear losing their whole family. They rely on her and the sponsor.
Having considered the various aspects of the relationship, I am satisfied that the visa applicant and sponsor are married to each other under a marriage that is valid, that they have a mutual commitment to a shared life as a married couple to the exclusion of all others, and that the relationship between them is genuine and continuing and that they do not live separately and apart on a permanent basis. Further, I consider that the circumstances of her four nephews and their dependence on the primary applicant are additional factors which add weight to the demonstrated commitment of the parties to each other and to their family unit.
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.
I consider that the genuine, established relationship between the primary applicant and the sponsor, and between him and the secondary applicants, the lengthy separation he and the primary applicant have endured, the financial and emotional cost of his efforts over seven years to continue to support and visit the applicants and build a relationship with the children, and the negative emotional and financial impact that a refusal of the visa (and ongoing separation) would have on the sponsor, an Australian Citizen, are such that I am satisfied that there are compassionate circumstances that affect the interests of the sponsor and justify the granting of the visa in this case.
I am satisfied that the requirements of PIC 4020(1) should be waived.
Are the other subparagraphs of PIC 4020 satisfied?
There is no evidence before me that any of the applicants (or members of the family unit of the applicants) have previously been refused a visa for failing to satisfy any aspect of this public interest criterion. The primary applicant satisfies PIC 4020(2). The information before me discloses no issue with the identity of any of the applicants or any members of their family. Copies of their identification documents have been provided. I am satisfied that the primary applicant satisfies PIC 4020(2A).
Apart from the decision under review, there is no evidence before me that any of the applicants have previously been refused a visa for failing to satisfy any aspect of this public interest criterion. PIC 4020 (2B) is satisfied.
I am therefore satisfied that once the requirements of PIC 4020 (1) are waived, the primary applicant satisfies the criteria in PIC 4020 as required by cl 309.225.
The delegate refused the visas of each of the secondary applicants because, as a consequence of the refusal of the primary applicant’s visa after finding that she did not satisfy PIC 4020, they could not satisfy the criteria as a dependent or member of the family unit of a person who held a subclass 309 visa. Their applications will be remitted for reconsideration in light of the Tribunal’s decision related to the primary applicant.
Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.
Anne Grant
Member