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Tribunal: Member S Norman

The applicants, a married couple with children, sought a review of a decision by the then Department of Immigration and Border Protection (the Department) refusing their applications for employer nomination visas[1] because they failed to meet Public Interest Criterion 4020 (PIC 4020).

PIC 4020(1) requires applicants not to give bogus documents or false or misleading information in relation to their visa application or a recent visa grant. It can be waived if there are compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen or permanent resident or eligible New Zealand citizen that justify the granting of the visa.

The Department had evidence before it that, in 2003, the secondary applicant was caught travelling to Norway on a fake British passport, had subsequently pleaded guilty to charges and served 45 days in jail.

On the visa applications[2] the primary applicant denied that any applicant had ever been convicted of an offence in any country, and acknowledged the applications could be rejected if the information was false.

In a statutory declaration to the Department, the applicants acknowledged the response was incorrect and that the secondary applicant had been jailed in Norway for using a bogus passport.

The AAT was satisfied the applicant did not meet PIC 4020(1).

The AAT then had to consider whether there were compassionate or compelling circumstances.

The circumstances the AAT needed to consider involved an adult male Australian citizen who had commenced a ‘relationship’ with the applicants’ then 14 year old daughter, leading to the birth of two children with Australian citizenship. The daughter was 19 at the time of the hearing and living in a woman’s refuge, fearing domestic violence from the now 29 year old male citizen. She attended the AAT hearing with her children.

The primary applicant provides her daughter with nappies, money for milk, phone bills and other costs for the children. The daughter has no other family in Australia.

The AAT accepted that the applicants are their daughter’s and their Australian citizen grandchildren’s chief support mechanisms in Australia.

For reasons of compassionate or compelling circumstances affecting the interests of Australian citizens, namely their two Australian grandchildren, the AAT exercised discretion and waived PIC 4020, remitting the application.

Read the full decision




[1] under s.65 of the Migration Act 1958 (the Act)

[2] Temporary Residence Transition stream