• Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

MIGRATION - Partner (Provisional) (Class UF) visa - Subclass 309 (Spouse (Provisional)) - false or misleading information and bogus documents - date of birth, passport and statutory affidavit - non-compliance conceded - earlier date of birth/older age declared on advice of fertility specialist to access higher level of treatment - discretion to waive criterion - compassionate or compelling circumstances - valid marriage, genuine and continuing relationship and two young children - decision wholly in favour of applicant made without hearing necessary - member of family unit older child - decision under review remitted

Migration Act 1958 (Cth), ss 5(1), 65

Administrative Review Tribunal Act 2024 (Cth), s 106(1), (3)

Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, Schedule 4, criterion 4020(1), (4)(b), (5)

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Kaur v MIBP [2017] FCAFC 184

Plaintiff M64/2015 v MIBP [2015] HCA 50

Singh v MIBP [2018] FCAFC 52

Trivedi v MIBP [2014] FCAFC 42

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

1. This is an application for review of a decision made by a delegate of the Minister on 17 January 2023 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicants applied for the visas on 13 September 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
3. The Hearing of the review applicant's matter was to occur in the Administrative Review Tribunal (the Tribunal)on 3 June 2025.
4. On 2 June 2025, the Tribunal wrote to the review applicant via her representative stating as follows:

The Presiding Member has considered the material and submissions provided by the parties. The Presiding Member is prepared to make a decision on the papers in the following way:

1. The only dispositive issue determined by the delegate relates to PIC 4020.
2. The primary visa applicant has admitted to providing false information relating to her date of birth and therefore is unable to satisfy PIC 4020(1).
3. The Tribunal is satisfied on the evidence that the requirement of PIC 4020 can be waived in the circumstances as per PIC 4020(4)(b), owing to the existence of compelling and compassionate circumstances that affect the interest of an Australian citizen.

If this is agreeable to the review applicant, the Hearing can be cancelled and a decision will be issued in due course waving the PIC 4020 requirement.

The Tribunal looks forward to your urgent response".

1. In response to the Tribunal's correspondence, the review applicant's representative wrote to the Tribunal on 2 June 2025, stating as follows:

Our client is agreeable to the Presiding Member making a decision on the papers".

1. For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.
2. Section 106 of the Administrative Review Tribunal Act 2024 (the ART Act) outlines circumstances in which the Tribunal may reach a decision without a Hearing. Pursuant to s.106 (1):

"The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the Hearing of the proceeding if any of subsections (2) to (5) applies."

(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the Hearing of the proceeding; and

(b) either:

(i) the decision is wholly in favour of the applicant; or

(ii) the applicant requests the Tribunal to make its decision without holding the Hearing of the proceeding; and

(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding."

1. The Tribunal is satisfied that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

1. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 309.225 for the grant of the visa. Broadly speaking, this 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).
2. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate circumstances justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?

1. The term 'information that is false or misleading in a material particular' is defined in PIC 4020(5) and the term 'bogus document' is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of 'information that is false or misleading in a material particular' in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a 'false or misleading' statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
2. 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 applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
3. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
4. The Tribunal also notes the guidance concerning these matters from the Full Federal Court in the matter of Singh v MIBP [2018] FCAFC 52. In particular, the Tribunal has paid careful regard to the following guidance in that decision [at 144]:

"Where an issue of the proper construction or application of PIC 4020 is raised, Trivedi and Patel authoritatively state that where a visa applicant has given or caused to be given to a relevant decision-maker a document which is a "bogus document" as defined, or information that is false or misleading in a material particular as defined, to determine whether PIC 4020 is satisfied or not, it is not necessary to show knowing complicity by the visa applicant as long as the material is purposely untrue."

Bogus document or information that is false or misleading in material particular

1. At the time of application lodgement, the visa applicant provided various documents to demonstrate her identity including a copy of her Nigerian passport and a statutory affidavit issued by a Nigerian court.
2. Following receipt of this material, the visa applicant was contacted by the department to confirm her identity and was advised that the information provided indicated that she was born in 1979. The visa applicant advised the department that the age listed on the visa application was "advised by her sister when she went to get a birth certificate". The department officer then asked the visa applicant to provide her "real age".
3. On 13 July 2022 the visa applicant provided a response in relation to the issue of her identity and her date of birth. She advised that she had informed her fertility specialist that she was born in August 1979, on the advice of a fertility expert. She explained that the reason advanced by the expert was that if she gave an older age, "the drug I will be prescribed would be stronger than the one given to younger women and which has greater chance of success".
4. In this correspondence, the visa applicant advised that the date of August 1979 was "not my recognised, documented and lawful date of birth as claimed". The visa applicant's actual date of birth is [Date 1].
5. Section 5(1) of the Act defines a' bogus document' as one that the Tribunal reasonably suspects was obtained because of a false or misleading statement, whether or not made knowingly. Pursuant to PIC 4020(5) of the Regulations, information that is false or misleading in a material particular means firstly, information that is false and misleading at the time it is given, and secondly, that it is relevant to any of the criteria the Minister may consider making a decision on an application, whether or not the decisions made because of that information.
6. The Tribunal finds that the review applicant provided false or misleading information regarding her date of birth by providing false and misleading information, within her Partner Visa application, as described in paragraphs 16-19 above.
7. Therefore, the Tribunal finds that the review applicant has given false or misleading information in a material particular, namely her date of birth. The Tribunal further finds that the visa application and information it contained, were relevant to criteria that the Minister may consider in making a decision on the partner Visa application between the visa applicant and the review applicant.
8. Therefore, the visa applicant does not meet PIC 4020(1).

Should the requirements of PIC 4020(1) or (2) be waived?

1. 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.
2. 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.

1. The review applicant and visa applicant have provided the Tribunal with extensive evidence in relation to matters which they claim are relevant to the consideration of a waiver of the public interest criterion on the grounds that there are 'compassionate or compelling circumstances' that affect the interests of an Australian Permanent Resident, namely the review applicant, that justify the granting of the visa.
2. The effect of this evidence is that the visa applicant and the review applicant were married in 2018 and have two biological children, twin children born on [Date 2].
3. The Tribunal accepts the evidence of the parties, that they have a strong relationship as a married couple and that they care for and provide significant emotional, psychological and financial support to each other and to their children, within a stable and loving family environment.
4. The review applicant is an Australian Permanent Resident, whereas the visa applicant and the children continue to reside offshore. The Tribunal finds that the parties and the children would be severely and adversely affected by decision not to waive the public interest criterion. The Tribunal is mindful of the fact that if the visa applicant is not granted a waiver in this case, there is a distinct possibility that she and the children will live apart from her husband and their father for extended periods of time. If this were to occur, the parties and their children would be deprived of the love and support of both of their parents and the parents would be deprived of residing with each other and their children as a family unit.
5. Further, the Tribunal takes note that Australia, as a signatory to the Convention on the Rights of the Child, considers the family as the fundamental group of society and the natural environment for the growth and well-being of all members, particularly children.
6. Having considered all the evidence, the Tribunal finds that there are highly compelling and compassionate circumstances that affect the interests of an Australian Permanent Resident that justifies the granting of the visa and as a result, the requirements of PIC 4020 should be waived, having regard to those circumstances.
7. Therefore, the requirements of PIC 4020(1) should be waived.

1. The Tribunal has no evidence before it of the following matters: that the visa applicant or a member of the family unit has been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting three years for the application was made and ending when the visa is granted or refused (per 4020(2) and (2AA)); that the visa applicant is unable to satisfy the Minister as to her identity (per PIC 4020(2A)); or that the visa applicant or a member of the family unit 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 granted or refused (per PIC 4020(2B) and (2BA)).
2. On the basis of the above, the review applicant satisfies PIC 4020 for the purposes of cl 309.225.
3. Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.
4. The delegate refused the second named visa applicant on the basis that the first named visa applicant had been refused. As the Tribunal has found that the first named visa applicant has met cl 309.225, the appropriate course is for the Tribunal to also remit the second named visa applicant to be reconsidered in light of the direction for the first named visa applicant.

1. The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the first named visa applicant meets the following criteria for a Subclass 309 (Partner) visa:
   • Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

Migration Regulations 1994

1. (1) There is no evidence before the Minister that the visa 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 visa 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 visa applicant and each member of the family unit of the visa 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 visa applicant if, at the time the application for the refused visa was made, the visa applicant was under 18.

(2A) The visa applicant satisfies the Minister as to the visa 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 visa applicant, nor any member of the family unit of the visa 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 visa applicant if, at the time the application for the refused visa was made, the visa 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 visa 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;

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.

**Migration Act 1958

s 5 Interpretation**

(1) In this Act, unless contrary intention appears:

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.