Federal Court. Did the Tribunal need to form a view pursuant to PIC 4020(4)(b) about the likely period of separation before determining whether PIC 4020(1) should be waived?
A partner visa sponsor gave evidence to the Tribunal that if a partner visa application was refused under PIC 4020, she would endure "considerable psychological pain" by her separation from the visa sponsor. That evidence was relevant to whether the Tribunal should waive under PIC 4020(4) the usual PIC 4020 requirements. There was no psychological report to corroborate that claim, but there was a medical certificate where a GP affirmed the position communicated to him/her by the visa sponsor.
PIC 4020 read as follows:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer [as to which see the definition of the term “officer” in s 5(1) of the Act] … 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 … has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
...
(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 Australia permanent resident …
justify the granting of the visa.
...
The Federal Court (FCA) said was follows:
... In assessing how that evidence might bear on the question of whether there were compassionate or compelling circumstances affecting [the sponsor], the Tribunal observed that [the sponsor] had not attended counselling and that there is no report from a psychologist. It observed that the “only evidence” of [the sponsor's] psychological condition (attested to by the certificate) was the “self-reported symptoms” to the GP and the “claims of the parties”. It also observed that there was “nothing” in the nature of “clinical evidence” and for these reasons the Tribunal observed that “only limited weight” could be given to the claim that [the sponsor] was experiencing “considerable psychological pain”...
Some of the questions to the FCA were as follows:
Question 1: Can it be said that, "in circumstances where no aspect of [the sponsor's] evidence was called into question in terms of truthfulness or reliability, there was no objective rational basis for putting her evidence to one side or the evidence of [the GP] to one side which was entirely consistent with the oral evidence of [the sponsor] and there was no basis for treating [the sponsor's] evidence as only attracting “limited weight”"?
Question 2: Did the Tribunal need to form a view pursuant to PIC 4020(4)(b) about the likely period of separation before determining whether PIC 4020(1) should be waived?
The FCA answered those questions as follows: