1417925 (Migration) - [2019] AATA 1362

1417925 (Migration) [2019] AATA 1362 (24 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1417925
MEMBER:John Billings
DATE:24 April 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.
Statement made on 24 April 2019 at 3:10pm

CATCHWORDS
MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 886 (Skilled - Sponsored) – Federal Circuit Court remittal – evidence of bogus document – false or misleading information – skills assessment – documents supporting 900 hours of work experience – third party admitted to creating false work reference letters for international students – business at which applicant claimed work experience implicated in systematic fraud – considerable delays – no compassionate or compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359AA, 359A, 362A, 375A,
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 886.225; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2013] FCCA 1162
MIAC v MZYNN [2012] FCA 1177
MIBP v Singh [2016] FCAFC 183
Mudiyanselage v MIAC [2013] FCA 266
MZYPZ v MIAC [2012] FCA 478
Paduano v MIMIA [2005] FCA 211
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIMAC [2013] FCCA 1435
Sun v MIBP [2016] 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 section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application by [the first named applicant], [the second named applicant] and their son, [the third named applicant], for review of a decision made by a delegate of the Minister for Immigration on 15 October 2014 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act). For convenience, in this decision record the Tribunal sometimes refers to [the first named applicant] even where, in the relevant context, it refers to all the applicants.
There is a separate review application by [the first and second named applicant]. That application is in relation to a refusal to grant Skilled (Provisional) (Class VC) visas: AAT case number 1509387.
[The first named applicant]’s son was born in Australia in [year]. That was after the Class VC visas were refused but before the primary decision was made in relation to the Class VB visas.
The applicants applied for the Class VB visas on 26 May 2008. The delegate refused to grant the visas on the basis that [the first named applicant] did not satisfy the requirements of cl.886.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not satisfy PIC (Public Interest Criterion) 4020. The delegate found that [the first named applicant] provided to the Department a skills assessment by TRA (Trades Recognition Australia) and that to obtain the skills assessment [the applicant] provided to TRA “documents supporting [his] 900 hours[’] work experience from [Business 1]”. The delegate referred to relevant admissions made by “an individual” ([Mr A]). The delegate said that she was satisfied that the skills assessment was a bogus document because she reasonably suspected that it was obtained because of a false or misleading statement made to TRA, whether or not made knowingly, about [the first named applicant]’s claimed 900 hours’ work experience at [Business 1].
The applicants applied to the MRT (Migration Review Tribunal) for review on 3 November 2014.
In case number 1509387 the MRT issued invitations pursuant to s.359A and s.359AA of the Act for [the first named applicant] to comment on or respond to adverse information. Following a hearing on 24 October 2012, the MRT (differently constituted) affirmed the decision to refuse the visas on 13 June 2013: MRT reference 1200855. [The first and second named applicant] applied for judicial review of the MRT’s decision. [In] June 2015 the Federal Circuit Court of Australia made an order remitting the matter: see [Citation deleted]. The essential basis for remittal was that the MRT had not complied with its obligations under ss.359A and 359AA.
On 5 April 2017 the Tribunal issued invitations pursuant to s.359A in both cases and issued an invitation pursuant to s.359AA at a hearing conducted in June 2017: see below.
[The first and second named applicant] appeared before the Tribunal on 8 June 2017 to give evidence and present arguments. With their consent the hearing was conducted concurrently with the hearing in case number 1509387. The Tribunal also received oral evidence from [Mr B] (by telephone from Western Australia), [Mr C], and [Mr D]. ([Mr B] was previously enrolled with [the first named applicant] in a [specified] course. [Mr C] claims that he was a customer when [the first named applicant] worked at [Business 1]. [Mr D] is founder of the not-for-profit organisation [Organisation 1]). [Mr E], founder of the not-for-profit organisation [Organisation 2], was said to be lecturing [overseas] at the time of the hearing. [Mr E] was not available when the Tribunal attempted to telephone him but he, like [Mr C] and [Mr D], made written statements that were submitted to the Tribunal. There was no request that the hearing be postponed to enable [Mr E] to give oral evidence and the Tribunal did not consider that to be required.
[The first named applicant] and [the second named applicant] were represented in relation to the review by their registered migration agent. The representative attended the hearing and made written and oral submissions. There were other migration agents involved at the primary stage.
The delay there has been since the June 2017 hearing is substantially for the reason that [the first named applicant] sought access to material held by the Tribunal in an unrelated MRT case, [Case Number 1]. (That case is significant was referred to in the April 2017 s.359A invitation: see below). On 20 September 2017 [the first named applicant]’s representative sent an email the Tribunal. In particular, the representative noted that the Tribunal had decided not to grant access and that the decision was affirmed following internal review. The representative advised that review by the Australian Information Commissioner had been sought. The representative requested the Tribunal not to make a decision until the process was completed, if the information requested was not otherwise released by the Tribunal.
On 19 October 2018 the Tribunal wrote to [the first named applicant], noting that it had been informed by the OAIC (Office of the Australian Information Commissioner) that the OAIC had finalised the matter. The Tribunal indicated that it would allow until 9 November 2018 for [the first named applicant] to provide further evidence or make further submissions. The Tribunal asked that if [the first named applicant] submitted that he required a further hearing for the purpose of providing further evidence or making further submissions he notify the Tribunal within seven days, giving reasons for the submission. The Tribunal noted that otherwise it may proceed to finalise the review at any time after 9 November 2018.
On 25 October 2018 the representative informed the Tribunal that he was waiting to see if [the first named applicant] would seek judicial review of the OAIC decision. The representative stated that if [the first named applicant] did seek judicial review the representative would notify the Tribunal and would request that the review of the decisions to refuse visas be adjourned pending the outcome of the judicial review application. On the same day the representative made further submissions. On 15 November 2018, the representative provided further letters in support of the application, addressing the possible waiver of PIC 4020(1).
The Tribunal has not been advised that [the first named applicant] has sought judicial review of the OAIC decision. There has been no request to adjourn the review as result of that. And there has been no submission that there should be a further hearing.
Mindful of the delay there has been in this case, the Tribunal has this month re-read a transcript that was produced for [the first named applicant]’s 2012 MRT hearing and listened to the recording of the June 2017 hearing.
[The first named applicant] and [the second named applicant] are nationals of India. They are aged [age] and [age] years respectively. [The first named applicant] has his own [business] and [the second named applicant] is a [Occupation 1] with a major Australian [business]. [The first named applicant] first arrived in Australia [in] March 2005 holding an Indian passport and a [Student visa] that ceased in March 2008. [The first named applicant] has departed and re-entered Australia a number of times. [The first and second named applicant] were married in India in 2006. [The second named applicant] first arrived in Australia [in] January 2007 holding an Indian passport and a [Student visa]. She has departed and re-entered Australia a number of times. [The first and second named applicant] have held various bridging visas since March 2008.
According to the visa applications and material in support, [the first named applicant] obtained a [Qualification 1 in Discipline 1] from [Institute 1] where he was a student from [July] 2006 to [April] 2007, and [Qualification 2 in an unrelated discipline] from [Institute 2], where he was a student from [May] 2007 to [January] 2008. His nominated occupation is [Occupation 2]. The visa application indicates that a skills assessment was made by TRA on 5 February 2008 (TRA reference [number]) (“the skills assessment”). On its face the skills assessment was issued on the basis of documents including “work experience documents”.
[The first named applicant] gave oral evidence in June 2017 about [Discipline 2] courses he has undertaken in Australia. Soon after he arrived in Australia in 2005 he commenced [a course in Discipline 2] which, essentially for personal reasons, he did not complete. Years later he obtained a Diploma [and] an Advanced Diploma in [Discipline 2] from [Institute 3].
The Department’s file includes the skills assessment and academic records.
The Tribunal’s files (including the MRT file) include material obtained from the Department on summons (see below in connection with the s.359A invitation issued by the Tribunal on 5 April 2017), statements in support of the application and written submissions.
The following matters were confirmed by [the first named applicant] at the June 2017 hearing. [The first named applicant] gave the Department a copy of the skills assessment in support of his visa application. The skills assessment, which was positive, was issued on the basis that, among other things, [the first named applicant] completed (more than) 900 hours’ work experience. The work experience was voluntary. The skills assessment was issued on the basis of documents including a work reference made on behalf of [Business 1], a [business] located in [Suburb 1]. [The first named applicant] obtained the work reference from the employer and gave it to TRA. The work reference, ostensibly signed by [Mr F] as [Owner] of [Business 1], states that [the first named applicant] completed 920 hours’ work experience in the period from 23 December 2006 to 22 December 2007[1].
[1] In a submission dated 8 January 2012 (though, it appears of 8 January 2013) the representative referred to evidence that [Mr F] has changed his name. The submission essentially addressed an issue discussed by the MRT to do with the ABN on the work reference.
The s.359A invitation issued on 5 April 2017 contained common elements with the s.359A invitation issued by the MRT in case number 1200855 (now 1509387) but it went further, especially in relation to evidence concerning material obtained when a search warrant was executed at [Mr A]’s premises, and oral evidence given to the MRT by [Mr F] in the unrelated MRT case mentioned earlier. It is convenient to set out the material parts of the April 2017 invitation issued pursuant to s.359A. The Tribunal first indicated that the information referred to the activities of [Mr A]. The Tribunal noted a suppression order made by the County Court of Victoria in relation to that and provided a copy of the order to [the first named applicant]. The relevant parts of the invitation were as follows:
The particulars of the information are:
·     [Mr A] has admitted to being involved in creating fraudulent documents for migration purposes. The documents include work reference letters by approximately 40 different employers. On 21 April 2011 [Mr A] made a statement to police (attached to the s.359A invitation) in which he stated that he created the fraudulent documents for students to use in their attempts to obtain “PR” (permanent residency) in Australia. He said he created the false work reference letters to show that the student had completed 900 hours of work in a trade. He said that the fraudulent documents were used by international students in support of skills assessment applications submitted to TRA and that the skills assessments were subsequently used in support of General Skilled Migration visa applications lodged with the Department of Immigration
·     In the police statement [Mr A] further stated that [Business 1] was one of the businesses involved in providing false work reference letters to students in order for them to obtain skills assessments from TRA for skilled visa applications. [Mr A] stated that [Mr F] from [Business 1] was one of the employers who agreed for him to sign work reference letters on his behalf. [Mr A] said that all the employers knew that the students were not going to complete the full 900 hours as the students had already paid for the reference prior to commencing any voluntary work experience. [Mr A] said he had an agreement with the employers that they would verify false employment claims if TRA or the Department of Immigration checked the information
·     The ‘Agreed Summary of Material Facts’ in the County Court proceeding (attached to the invitation) indicates that the period when [Mr A] was engaged in the fraudulent activities described above coincides with the period when you claim to have undertaken work experience at [Business 1]: [December] 2006 to [December] 2007
·     According to a statement by a Department of Immigration Investigator dated 3 February 2011 (attached to the invitation) and an Evidence Summary made by the Department of Immigration (attached to the invitation), evidence obtained on the execution of a warrant at [Mr A]’s premises on 29 September 2009 by AFP (Australian Federal Police) includes work reference documents with your name and date of birth, and the employer identified as [Business 1]
·     In an unrelated case before the MRT (Migration Review Tribunal) (MRT [Case Number 1]), a person identified as [Mr F], the owner of [Business 1], gave oral evidence to the MRT at a hearing held [in] July 2013. In particular, [Mr F] told the MRT that he met [Mr A] at the [specified business] in or about 2007. [Mr A] introduced himself as a [teacher]. He asked [Mr F] if he would like assistance from students who needed to obtain voluntary work experience in [Discipline 1]. The MRT inquired about the number and names of any volunteers who completed 900 hours or more of work in his business. [Mr F] told the MRT that a number of people approached him for work experience including 15 or so people who approached him or his wife at his home. Some people attended the business but did not stay for more than a few hours. [Mr F] gave evidence that from 2007 until he sold the [business] in 2009 there were only two volunteers who completed the full 900 hours of work experience. They left the business in 2008. [Mr F] provided to the MRT the names of those two (male) volunteers: [Mr G] and [Mr H].
This information is relevant to the review for the following reasons:
·     The information is relevant to the review because the criteria for the grant of the visa you have applied for include that there be no evidence that you have given or caused to be given to persons including the Minister a bogus document or information that is false or misleading in a material particular in relation to the visa application
·     The information undermines your claim to have performed 900 hours or more of work for [Business 1]
·     The Tribunal may find that the information amounts to evidence that the contents of your work reference were false or misleading in relation to the work experience you claim to have undertaken. The Tribunal may further find that you submitted a work reference letter from [Business 1] to TRA; that your positive skills assessment was obtained because of a false or misleading statement; and that you caused or caused the skills assessment to be given to the Minister or other relevant person
·     The Tribunal may therefore find that there is evidence that you have given, or caused to be given, to the Minister or other relevant person a bogus document
·     If the Tribunal makes this finding, it may find that you do not meet the requirements of subclause 4020(1) because the Tribunal could not be satisfied that there was “no evidence” that you have given, or caused to be given, to the Minister or other relevant person a bogus document (as defined by section 5(1) of the Act) in relation to the application for the visa; and
· Unless the Tribunal is satisfied that 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 granting the visa and waiving the application of public interest criterion 4020, the Tribunal may find that you do not meet the requirements of public interest criterion 4020 and so do not meet clause 886.225 of the Regulations
·     The Tribunal may therefore affirm the decision under review.
[The first named applicant] sought and was granted an extension of time to comment on or respond to the information in the s.359A letter. He responded on 2 May 2017. His representative informed the Tribunal that [the first named applicant] “denies the allegation that he did not work as claimed at [Business 1]”.
Giving oral evidence in June 2017 [the first and second named applicant] adopted the oral evidence they gave the MRT in 2012.
[The first named applicant]’s evidence to the MRT, and the MRT’s testing of the evidence, covered points including the days and times [the first named applicant] worked at [Business 1], his duties, his knowledge of the location and layout of [Business 1], and his knowledge of [Discipline 1].
In June 2017 the Tribunal asked [the first named applicant] about an undated submission to the Department that was made by one of his former migration agents, [Mr I]. In the submission it was said that [the first named applicant] obtained work at [Business 1] due to “a referral provided by [Mr A] (who was his teacher at [Institute 1])”. [The first named applicant] said that when he was in the middle of his course he came to learn about the requirements for a skills assessment. He tried to obtain work at a couple of [businesses] but as had no experience he was having difficulty finding work. He thought that [Mr A] might be able to suggest someone and [Mr A] said he would see about that. A couple of weeks later [Mr A] told [the first named applicant] about [Business 1] but said that he might not get paid. The [business] was 45 minutes’ drive from [the first named applicant]’s home but he took the position because there was no other opportunity. [The first named applicant] said he had no idea that [Mr A] was helping other people in this way. He was not aware of any other [Institute 1] students working at [Business 1]. [The first named applicant] developed a good rapport with [Mr F] and even discussed opening a [business] in partnership with him one day. [Mr F] prepared the work reference after [the first named applicant] asked him for a reference.

Asked further about any other employees at the [business], [the first named applicant] said that there were one or two but he said that he did not ever exchange phone numbers with them. He said that he was too busy most of the time to get to know anyone. There were not many people working during the night time. He did “not really” know their names.
Concerning the recording of hours worked, [the first named applicant] said that [Mr F] had a log book. From time to time he saw [Mr F] record his hours. [The first named applicant] did not keep his own record because as the work was unpaid he thought it might not be required.
The Tribunal pursued some further matters that had been pursued by the MRT. One was the omission to mention the work he did in a Form 1221 (Additional personal particulars information) dated 5 March 2008 that was given to the Department. By way of explanation [the first named applicant] said that the form was filled in by the agent he had at time. The agent asked him if the work at the [business] was paid work and [the first named applicant] said that it was not.
The Tribunal also asked about [the first named applicant]’s motivation to undertake a [Discipline 1] course and work in the [business], given that his evidence was that at school in India he had a special interest in [Discipline 2], that his first course in Australia was [a course in Discipline 2], and that since 2008 he had worked [in Discipline 2] (previously as an employee and now with his own company). He told the Tribunal about family and financial pressures he had after he and [the second named applicant] were married and her father died. He said that the fees for [Discipline 2] courses were high and the fees for the [Discipline 1] course were lower. He said in effect that [Discipline 1] was something that he thought he could do and would like to do. He added that he performed well in the [Discipline 1] course. He went on to say that he obtained distinctions in most of his subjects in [Qualification 2] and [Qualification 1 in Discipline 1].
The evidence given by [Mr C] is set out below. The Tribunal first records how [Mr C] came to give evidence to the Tribunal and what [the first named applicant]’s oral evidence was concerning [Mr C]. In essence [Mr C]’s evidence is that he was a customer of [Business 1] during the time [the first named applicant] was working there. [Mr C] did not give evidence to the MRT in 2012. The Tribunal heard that [Mr C] and [the first named applicant] had a chance meeting in early 2017 at a shopping centre. When [Mr C] learned about [the first named applicant]’s problems he said he would give evidence to the Tribunal. What [the first named applicant] had to say about [Mr C] was that he was a regular customer of the [business]. [Mr C] visited the [business] two-three times per week from mid-2007. He came dozens of times while [the first named applicant] worked there. Whenever he came [the first named applicant] used to serve him, giving him whatever he needed. [The first named applicant] told [Mr C] when they met in 2017 that the owner of the [business] was not accepting that he worked there. (In his statement [Mr C] said that [the first named applicant] told him that the owner “refused” to acknowledge his employment). The Tribunal sought to clarify this point, for it was [the first named applicant]’s evidence that he had not been able to contact [Mr F] after he stopped working at the [business]. ([The first named applicant] said that at the end of 2011, when the Class VC visas were refused, he tried to call [Mr F] and went to the [business] but he could not make contact with [Mr F]. He was told that [Mr F] had sold the [business]. It emerged that [the first named applicant] was saying that he inferred from the negative outcome of the visa applications that [Mr F] was not acknowledging this work experience).
In 2012 [the second named applicant] told the MRT that [the first named applicant] worked in a [specified business]. She identified the suburb where it was located but at first she was unable to state the name of the [business]. She confirmed that she had not visited the [business]. She gave evidence about the hours [the first named applicant] worked and the nights he worked during term time. In relation to the holiday periods she could only say that he did extra work then. The discussions [the second named applicant] had with [the first named applicant] about his work were evidently limited, though [the second named applicant] did say that he brought some of the products home. At the June 2017 hearing [the second named applicant] added something that she said she had not told [the first named applicant] before. That is that she was apprehensive about being alone at night when he was working at the [business].
[Mr B] also gave evidence to the MRT. In June 2017 [Mr B] confirmed the essential parts of that evidence and added some points. [Mr B] is a national of India. He is an Australia permanent resident. He works as [Occupation 3]. [Mr B] told the Tribunal that he and [the first named applicant] met as students in 2005. Neither of them completed the [Discipline 2] course they were undertaking at the time. They then enrolled in the same course at [Institute 1]. During the time they were at [Institute 1] [Mr B] was working as [Occupation 4]. There was a time when he borrowed [the first named applicant]’s car. [Mr B] said that he dropped [the first named applicant] at the [Business 1] somewhere in [Suburb 1] “maybe” three times. He said that must have been in December 2006 to January or February 2007. He dropped [the first named applicant] off at 9-9.30 pm and picked him up at 3-3.30-4 am.
None of the other witnesses who gave evidence to the Tribunal in June 2017 gave evidence to the MRT in 2012.
The Tribunal now sets out [Mr C]’s evidence. [Mr C] made a written statement dated 5 June 2017 and gave oral evidence. In his statement he said that he met [the first named applicant] “regularly” in 2007 when [the first named applicant] was employed by [Business 1] and [Mr C] was a regular customer. [Mr C] visited the [business] 3-4 times per week on his way home to a nearby suburb from his work which went late into the evenings. “Almost always [he] was catered to by [the first named applicant] over-the-counter and sometimes by the other employee of the [business]”. A “kind of kinship” developed because of their “similar language and culture” and because of [the first named applicant]’s “excellent customer service every single time”. [Mr C] moved out of the neighbourhood in 2016. More recently he began living in a suburb near where [the first and second named applicant] now live. [Mr C] and [the first named applicant] were at a shopping centre and “recognised each other easily”. On having a “hearty discussion” [the first named applicant] told [Mr C] that the owner of [Business 1] had “refused” to acknowledge [the first named applicant]’s previous employment. Therefore [Mr C] offered to help by confirming that [the first named applicant] worked at the [business] in 2007. In his oral evidence [Mr C] said that he came to Australia in June 2007 as a student. He attended [Institute 4]. [Mr C] first met [the first named applicant] at [Business 1] in July 2007. [Mr C] didn’t see [the first named applicant] at the [business] from January 2008. It was in March 2017 that [Mr C] next saw [the first named applicant] – at the shopping centre. [Mr C] confirmed that he visited the [business] 3-4 times per week. He said that he was not 100% sure which days they were, but they were weekdays. He mostly went at night time. It was very rare for there to be another customer present at the same time but that sometimes happened. Sometimes there was no one at the counter but there was a bell on the door and, hearing that, [the first named applicant] would come out into the shop. Sometimes [the first named applicant] or another person was already at the counter. On a typical visit [Mr C] asked for what he wanted and [the first named applicant] packed it and placed it on the counter. [The first named applicant] never received payment or gave change. Concerning his statement that [the first named applicant] told him that the owner of the [business] had refused to acknowledge his employment, [Mr C] said that he was told that the owner would not recognise that [the first named applicant] was employed there.
The evidence given by [Mr D] and the statement by [Mr E] relate to the issue whether PIC 4020(1) should be waived: see below.
The Tribunal inquired whether [the first named applicant] had anything to add to his response to the (April 2017) s.359A invitation. [The first named applicant] said in effect that his oral evidence – maintaining that he worked at [Business 1] – was his response.
There was further adverse information to discuss. Pursuant to s.359AA the Tribunal invited [the first named applicant] to comment on or respond to that and he elected to do so immediately.
First, there was information that when [Mr A] was interviewed by police he reportedly named the migration agent identified in the visa applications as [the first named applicant]’s agent as one of a number of migration agents who were knowingly involved in [Mr A]’s fraudulent activities. The Tribunal explained that the relevance was that the information indicated further links between [the first named applicant]’s work reference and [Mr A]’s fraudulent activities.
[The first named applicant]’s comment or response was to say that while he obtained the agent’s assistance with the visa applications had already obtained the skills assessment without any agent’s help. He said that he had no idea that the agent had any connection with [Mr A].
Secondly, there was [Mr C]’s evidence. By the time [Mr C] gave oral evidence [the first named applicant] had already told the Tribunal that whenever [Mr C] came to the [business] he, [the first named applicant], used to serve him. [Mr C]’s evidence included that on a typical visit to the [business] he asked for what he wanted and [the first named applicant] packed it and placed it on the counter, though [the first named applicant] never received payment or gave change. The Tribunal noted that, on the other hand, when [the first named applicant] was asked by the MRT if he had to “serve customers” at any point he said “no”.[2]
[2] MRT case number 1200855. Transcript p 18 Q155
[The first named applicant]’s comment or response was in essence to say that he thought the MRT member had been asking whether he took money from customers or whether stayed all night on the counter serving customers. [The first named applicant] reiterated that he gave products to customers but he was not authorised to handle cash.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
It is nearly 11 years since [the first named applicant] applied for the Class VB visas. For various reasons there have been long delays, including the delay since the June 2017 hearing. These delays are obviously most unfortunate for [the first and second named applicant] and their son now aged [age] years. It is important to record, however, that the Tribunal considers that, in the circumstances of the case, the delay has not impaired its capacity to give proper consideration to the case: see, for instance, MIAC v MZYNN [2012] FCA 1177 at [32]-[37].
There is a certificate given s.375A of the Act dated 16 August 2016 that was given to the Tribunal in the present case. As to the Tribunal’s obligations with regard to s.375A certificates see generally MIBP v Singh [2016] FCAFC 183. The Tribunal provided a copy of the certificate to the applicants on 18 January 2017 and invited submissions as to the validity of the certificate. The certificate refers essentially to the material that the Tribunal attached to the April 2017 s.359A invitation. The certificate stated that disclosure would be contrary to the public interest because it contained information requested under the Privacy Act 1988 and disclosure would be detrimental to the integrity of the Department and “could raise safety issues” for the officers named in the material.
By email dated 19 January 2017 [the first named applicant]’s representative made a submission to the effect that the certificate was not valid, the stated reasons for non-disclosure being insufficient as they were broad and vague. The representative further submitted that if the Tribunal found the certificate to be valid the officers’ names could be redacted if the names had not already been disclosed.
The stated reasons for disclosure being contrary to the public interest are broad. Nevertheless, the Tribunal considers that the certificate is valid. In any event the Tribunal provided redacted versions of the material to [the first named applicant] as part of the s.359A invitation.
On 25 October 2018, the day that the representative informed the Tribunal that he was waiting to see if [the first named applicant] would seek judicial review of the OAIC decision, the representative made submissions to the Tribunal that are related to the request for access to material referred to above, concerning the unrelated MRT [Case Number 1] in which [Mr F] gave oral evidence to the MRT. The submissions appeared to be to the effect that – whether considered under s.362A of the Act or as a matter of procedural fairness or both - the Tribunal should provide a copy of the decision record in MRT [Case Number 1] and the recording of the hearing or the transcript, if any. The material concerns another review applicant. The first request for the material was made in June 2017. The Tribunal has not provided the whole of the material to [the first named applicant]. The Tribunal considers that [the first named applicant] is not entitled to the material. The Tribunal further considers that it has given sufficient particulars of information under s.359A of the Act.
Having dealt with these various matters, the Tribunal now turns to the central issue in the review. That is whether [the first named applicant] meets PIC 4020 as required by cl.886.225 for the grant of the visas. Broadly speaking, this relevantly 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: cl.4020(1).
The requirements in cl.4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). PIC 4020 is extracted in the attachment to this decision.
The term ‘information that is false or misleading in a material particular’ is defined in cl.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 cl.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.
The requirement in cl.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: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
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.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
[The first named applicant] maintains that he worked as a volunteer for [Business 1] and that he completed over 900 hours’ work. The Tribunal notes that important events occurred many years ago so that [the first named applicant]’s recollection, and the recollection of his witnesses, could not reasonably expected to be perfect. Nevertheless, for reasons that follow, the Tribunal finds that a document [the first named applicant] has given or caused to be given to the Minister – the TRA skills assessment – is a bogus document. The Tribunal concludes that [the first named applicant] does not satisfy cl.886.225 because he does satisfy PIC 4020(1). He does not satisfy PIC 4020(1) because the Tribunal is not satisfied that there is no evidence that he has given or caused to be given to the Minister a bogus document in relation to his visa applications. The Tribunal finds that the skills assessment is a bogus document because the Tribunal reasonably suspects that it was obtained because of a false or misleading statement, whether or not made knowingly. The false or misleading statement is that he performed 900 hours’ or more work experience at [Business 1].
The evidence - in particular the information set out in the s.359A invitation issued in April 2017 - links [the first named applicant]’s own work reference to the systematic fraud that [Mr A], [the first named applicant]’s teacher at [Institute 1], admitted to and that [Mr A] specifically said involved businesses and employers that included [Business 1] and [Mr F].
In giving oral evidence to the MRT and to the Tribunal [the first named applicant] was able to display knowledge about matters such as the location of [Business 1] and the physical appearance of the premises. He gave reasonably consistent evidence about when it was that he worked there and aspects of the [business] trade that he performed.
The Tribunal considers that it would have been possible for [the first named applicant] to give this evidence if he had ever visited [Business 1]; or because he had undertaken a [Discipline 1] course, or because he was able to read detailed information in the work reference about the duties he was said to have performed.
On the other hand there were limits to [the first named applicant]’s evidence. [The first named applicant] could “not really” say who, apart from [Mr F], he worked with over the many months he claimed to have worked at the [business]. Had he produced his own records of hours worked, that actually may have invited suspicion, but the Tribunal considers that [the first named applicant]’s stated reason for not having any record of hours worked was unconvincing.
It is helpful to recall at this point that the issue is not whether [the first named applicant] ever worked at [Business 1]. The issue is whether he performed 900 hours’ or more work experience there. The Tribunal mentions in this context that it was submitted that [Mr A] made contradictory statements to the authorities about whether he knew, and therefore could say, that the students he helped did not complete 900 hours’ or more voluntary work. It was therefore submitted that [Mr A]’s statements “[do] not deny the possibility that [[the first named applicant]] completed the work experience as claimed”. The Tribunal has considered the possibility that [the first named applicant] completed the work experience as claimed. The Tribunal has concluded however that the skills assessment that [the first named applicant] gave the Minister is a bogus document, because the Tribunal reasonably suspects it to be a document that was obtained because of a false or misleading statement, whether or not made knowingly.

[The first named applicant] may possibly have spent some time at the [business], as [Mr F] said some students did. That much would be consistent with the evidence that [Mr B] and [the second named applicant] gave, although their evidence is not of great probative value: [Mr B] could only say that he took [the first named applicant] to the [business] two-three times from December 2006 to January or February 2007. [The second named applicant] gave only broad support for [the first named applicant]’s evidence. (The Tribunal will refer separately to [Mr C]’s evidence soon). It may even be the case that [the first named applicant] subsequently tried to locate [Mr F] and seek his help, as he claimed to have done.
The evidence includes photographs of [the first named applicant] ostensibly working as [Occupation 2]. The photos are of very limited probative value. The photos are undated. There is nothing in the photos that clearly shows that they were taken at [Mr F]’s premises as opposed to some other venue. There is the possibility that they are staged.
The whole of the evidence provided to support claims that [the first named applicant] performed 900 hours’ or more work experience at [Business 1], including the oral evidence of [the first and second named applicant] and the witnesses, does not lead the Tribunal away from the conclusion it has reached. The Tribunal’s conclusion is that the skills assessment [the first named applicant] gave the Minister is a bogus document, for the reason that the Tribunal reasonably suspects it to be a document that was obtained because of a false or misleading statement about his work experience, whether or not made knowingly.
There is other evidence to consider that actually undermines [the first named applicant]’s credibility.
[The first named applicant] told the Tribunal in June 2017 that whenever [Mr C] visited the [business] he, [the first named applicant], used to serve him, giving him whatever he needed. ([The first named applicant] used the word “serve”). [Mr C]’s evidence was that on scores of occasions he was “catered to” by [the first named applicant]. This evidence is in conflict with the evidence [the first named applicant] gave the MRT when he was asked if he had to “serve customers” at any point and he said “no”. While [the first named applicant] and [Mr C] gave consistent evidence to the Tribunal in June 2017 to the effect that [the first named applicant] did not handle money, the Tribunal does not accept [the first named applicant]’s explanation for the conflict in the evidence - that he thought that he was being asked by the MRT whether he took money from customers or whether stayed all night on the counter serving them. It is acknowledged that nearly five years passed between the MRT hearing and the June 2017 hearing. Nevertheless the same word - “serve” - was used both times. [The first named applicant] did not qualify his evidence to the MRT as he could easily have done by saying, for instance, that while he did not handle money, sometimes – such as when he heard the bell - he did deal directly with customers and give them the items they asked for.
Before leaving this point, the Tribunal mentions that [the first named applicant]’s work reference[3] states that in addition to trade related tasks [the first named applicant] had also “undertaken the following consideration in his mind … Managing quality customer service”. It is not clear what “consideration in his mind” means, but [the first named applicant] said that that the reference to managing quality customer service means that if no one was at the counter when a customer entered the [business] he could greet the customer and help them if they need anything in particular, such as gluten-free products. In the Tribunal’s view, this does not address the conflict in the evidence [the first named applicant] gave to the MRT and the evidence he and [Mr C] gave to the Tribunal in June 2017.
[3] Page 3 of the work reference
[The first named applicant]’s credibility is undermined in a further way which may be less significant but it is significant, nonetheless.
[The first named applicant] acknowledged that he undertook the [Discipline 1] course as a cheaper and faster pathway to obtaining permanent residence in Australia even though he more or less accepted that the main theme of his study and work has been [Discipline 2]. (The Tribunal does not suggest that there would necessarily be anything untoward about that. As an aside, the Tribunal notes that [Mr B]’s stated pathway was similar to [the first named applicant]’s in that he began in [Discipline 2] and transferred to [Discipline 1] but, in contrast to [the first named applicant], [Mr B] told the Tribunal that he did not return to the [Discipline 2] field and was working as a [Occupation 3]). The problem is that when [the first named applicant] was explaining to the Tribunal why it was that, having studied [Discipline 2] as part of his Matriculation in India, and having studied [Discipline 2] courses before and after he attended [Institute 1] where he met [Mr A], he said in effect that [Discipline 1] was something that he thought he could do and would like to do. He added that he performed well in the [Discipline 1] course. He went on to say that he obtained distinctions in most of his subjects in [Qualification 2] and [Qualification 1]. [The first named applicant]’s evidence on this point is not supported by the transcript of his academic record that was submitted to the Department. The [Institute 1] transcript, issued in April 2007, records that in each of the 15 units of [the first named applicant]’s [Qualification 1] his result was “Pass”. This casts doubt on [the first named applicant]’s stated reasons for undertaking the [Discipline 1] course and his credibility generally.
The Tribunal now refers to the evidence concerning the migration agent who assisted [the first named applicant] at the early stages (whom [Mr A] reportedly told police was involved in the fraudulent activities). There is nothing on the face of the application to TRA for the skills assessment that contradicts [the first named applicant]’s claim that the agent had no involvement in procuring the work reference or submitting it to TRA. [The first named applicant] told the Tribunal that the agent merely helped him make the visa applications. Overall the evidence concerning that agent neither adds to nor detracts from the Tribunal’s conclusion.
Similarly, the evidence about the contents of the Form 1221 does not affect the Tribunal’s conclusion.
The Tribunal now addresses more general submissions.
The representative submitted that the evidence of fraud on the part of [Mr A] and [Mr F] did not mean that [the first named applicant] had not completed 900 hours’ or more work experience at [Business 1]. He made a submission to the general effect that the evidence of [Mr A] and [Mr F] was untested, “tarnished” and unreliable. Among other things, he referred to evidence that [Mr F] had extorted large sums from students lest he report their activities. He said this undermined [Mr F]’s credibility. The representative also pointed out apparent contradictions in statements by [Mr A] and the person he described as the (business) owner mentioned in the (redacted) decision record in MRT [Case Number 1].
Referring to a statement to police by [Mr A] that [Mr F] accessed his hard drive (and computer, the representative added), the representative submitted that [Mr F] may have used [Mr A]’s computer to produce a genuine work reference for [the first named applicant] and so may have mixed “… good with … bad” work references. The representative further submitted that if there were a signed work reference provided in connection with the unrelated MRT matter – in which [Mr F] gave oral evidence confirming that the applicant in that case had completed the work experience – that document could be compared with the work reference for [the first named applicant] and show that it was signed by [Mr F] (in contrast to other work references that, according to [Mr A]’s statement, [Mr A] signed) and thereby show that [the first named applicant]’s work reference is genuine.
These submissions do not assist [the first named applicant]. It is so that fraud on the part of [Mr A] and [Mr F] would not necessarily mean that [the first named applicant] had not completed 900 hours’ or more work experience at [Business 1]. And there is good reason to be guarded about statements made by [Mr A] or [Mr F]. But the evidence that points to fraud specifically in connection with [the first named applicant]’s work reference is not limited to what [Mr A] and [Mr F] have said.
[Mr A] told police that one or two employers (including [Mr F]) accessed his USB that contained false work references. It is theoretically possible that [Mr F] used a document stored there to produce a genuine work reference for [the first named applicant] but, in view of all the evidence, the Tribunal considers the suggestion to be fanciful. It is unnecessary to determine [Mr F]’s motivation for accessing the USB, but it seems more likely that he just wanted to have the details of the persons named in the work references in case he was ever asked about that.
The Tribunal also considers that obtaining the work reference in the unrelated MRT case would not take matters further. Even if, first of all, the work reference in that case was ostensibly signed by [Mr F] and, secondly, the signature was found to match the one in [the first named applicant]’s case, that of itself would not establish that it was [Mr F] who signed [the first named applicant]’s work reference. If the signatures were found to match, and to be different to signatures on other work references, the inference that the signatures were [Mr F]’s might more easily be drawn. Given all the other evidence, that would be insufficient to lead the Tribunal from its conclusion, however.
When the items of evidence that point to the work reference containing a false or misleading statement are considered – individually and cumulatively – and the remainder of the evidence is considered, the Tribunal reasonably suspects that the skills assessment was obtained because of a false or misleading statement, whether or not made knowingly, the statement being that [the first named applicant] worked for 900 hours or more at [Business 1].
The Tribunal considers that there are objective circumstances upon which its reasonable suspicion is founded and that the objective circumstances could not properly be characterised as mere surmise or conjecture: see Sun v MIBP [2016] FCAFC 52 at [82]-[87] per Flick and Rangiah JJ. The evidence that [the first named applicant] and his witnesses have given does not overcome the circumstances that form the basis for the Tribunal’s reasonable suspicion. In ways described above - especially the conflict as to whether [the first named applicant] served customers - the evidence actually contributes to the circumstances that form the basis for the Tribunal’s reasonable suspicion.
The Tribunal mentions now that in 2012, when the MRT was reviewing the decision to refuse the Class VC visas, the submission was made that, because TRA was not a “relevant assessing authority” at the material time, the skills assessment was not valid, meaning that the skills assessment could not be a bogus document for the purpose of PIC 4020. The further submission was made that the regulations that inserted PIC 4020 in Schedule 2 retrospectively were invalid. It is necessary for the Tribunal to say only that the authorities make clear that those submissions cannot be sustained: see, for instance, with regard to the first submission, Mudiyanselage v MIAC [2013] FCA 266 and, with regard to the second submission, Kaur v MIBP [2013] FCCA 1162 at [58].
In summary, the Tribunal is not satisfied that that there is no evidence that [the first named applicant] gave or caused to be given to the Minister a bogus document, being the skills assessment. This means that [the first named applicant] does not satisfy PIC 4020(1).
The issue then is whether PIC 4020(1) should be waived.
Should the requirements of cl.4020(1) be waived?
The requirements of cl.4020(1) 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 r.1.03), that justify the granting of the visa: cl.4020(4).
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 circumstances” is circumstances that give rise to sympathy or pity: Australian Concise Oxford Dictionary, Fifth Edition. In MZYPZ v MIAC [2012] FCA 478 at [10] – [12] Bromberg J summarised the principles saying that “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v MIMIA [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ). In MZYPZ Bromberg J noted that “[u]ltimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred”.
The Tribunal notes the word “may” in cl.4020(4) indicates that cl.4020(4) permits waiver if the decision-maker is satisfied of the relevant “compelling circumstances” or “compelling or compassionate” circumstances, but it does not require waiver. [The first named applicant]’s conduct would be significant in this context.
The Tribunal has had regard to the relevant Explanatory Statement to F2011L00336. The Tribunal has also had regard to statements of policy in the current version of the Procedural Instruction Public Interest Criterion 4020 – The Integrity PIC.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The Tribunal first considers whether there are compelling circumstances that affect the interests of Australia that justify the granting of the visas.
At the time the MRT was reviewing the decision to refuse the Class VC visas there was evidence that [the first named applicant] was performing critical skilled work as an [Occupation 5] for various entities. That was put forwards as compelling circumstances that affect the interests of Australia. By the time of the June 2017 hearing however [the first named applicant] had ceased that employment and begun operating his [business]. He told the Tribunal that he worked from home. He said that he did not have any employees. Although he received regular requests from a Victorian Government agency to consider hiring one or more interns, and had even spoken to a student about the possibility, he had not hired anyone.
In June 2017 the Tribunal heard also about voluntary work that [the first named applicant] had done for two not-for-profit organisations: [Organisation 1] and [Organisation 2]. In the first half of 2017 [Mr D] and [Mr E] wrote letters on behalf of the organisations in support of [the first named applicant]. They wrote further letters in November 2018.
[Mr D], on behalf [Organisation 1], gave oral evidence to the Tribunal that he met [the first named applicant] in early 2015 and again at the end of 2016. He sought [the first named applicant]’s help with social media and the organisation’s website. [The first named applicant] contributed several hours to the task.
Regarding another charity, [Organisation 2], [the first named applicant] told the Tribunal that he had been working to update its website content and [social media] presence. He estimated that he had done 10-15 hours’ [of] work per week on average from March 2015. He also [performed specified tasks]. He did that for four-five hours per fortnight or per month.
Concerning [the second named applicant], the Tribunal received a letter dated in April 2017 by [Ms J], Executive Secretary of an organisation called [Organisation 3]. According to the letter [the second named applicant] had been volunteering for the organisation, assisting [intended beneficiaries] within the Indian community in Melbourne. [The second named applicant] counselled them and contributed financially to the organisation. [The second named applicant] told the Tribunal that she was busy working full time and looking after her child but she would spend a couple of hours on the weekend assisting the organisation if she talked to [members of the community]. While she volunteered mostly on weekends she had made it known to the organisation that she would be available on weeknights after she got home from work.
In their letters [Mr D] and [Mr E] describe leadership qualities that [the first named applicant] has brought to his work for their organisations. The letters confirm that [the first named applicant] has served the organisations now for a period of years. [Mr E] recently echoed his previous letter in stating that [the first named applicant] was “an indispensable part of” his organisation, though he said that not on the basis of [the first named applicant]’s attributes or efforts but rather on the basis that the organisation is a self-funded, not for profit organisation.
The Tribunal accepts that [the first named applicant] has significant skills that he has put to good use in his employment and in voluntary work. The Tribunal further accepts that [the second named applicant], who has a specialist role with a major Australian [business], has significant skills that she has put to good use. She has also contributed to important work assisting [a specific group of people]. The contributions [the first and second named applicant] have been making are of value to Australia, of course. However, the Tribunal does not find that they are of such great value – for instance because only very few people would be willing and able to do what [the first named applicant] and [the second named applicant] have been doing - that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa.
The Tribunal now considers 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.
In June 2017 the Tribunal heard that [the first named applicant]’s parents are in India. He has a sister in [Country 1] and a brother in [Country 2]. On the other hand, [the second named applicant]’s mother and brother are in Australia. They arrived in 2012 and have been living in Adelaide. The Tribunal heard that [the second named applicant]’s brother and his wife are Australian permanent residents and that their son is an Australian citizen. [The second named applicant] told the Tribunal that she provides emotional support to her brother. She said that her brother and her mother would experience emotional trauma if she and [the first named applicant] and their child could not stay in Australia. [The second named applicant] stated that the last time she saw her family in Adelaide was a couple of months prior to the hearing, though she was planning to fly there to see them on the day after the hearing.
The Tribunal has not received any medical or other expert evidence in support of claims that any member of [the second named applicant]’s family who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen would experience “emotional trauma” if the visas are not granted. The Tribunal does not find that 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.

The Tribunal accepts that [the first named applicant] and [the second named applicant] have done valuable work in Australia, including valuable voluntary work. The evidence on behalf of the not-for-profit organisations indicate that [the first named applicant] and [the second named applicant] have integrated into the community to a substantial degree. The Tribunal is also mindful that [the first and second named applicant] have been in Australia for well over a decade. During that time they have had a child here. He is now aged [age] years. In a letter dated 5 June 2017 [the first named applicant] described how he and [the second named applicant] and their son had integrated. [The first named applicant] said at the time that his son was due to commence school in 2018. He added that Australia is the only home that his son knows. He said that his son had never travelled outside Australia. [The first named applicant] said he was fearful about how his son would react to the “culture shock” if the family had to leave Australia. [The first named applicant] said that there would be an adverse emotional impact on all the family if they were not able to stay in Australia.
There is no simple explanation for the delay in the case. The delay is considerable. The delay has likely made a difficult situation for the applicants more difficult. [The first and second named applicant] and their son are not Australian citizens, Australian permanent residents, or eligible New Zealand citizens, however. Therefore the circumstances affecting them are not compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.
It has been noted that in October 2018 the Tribunal invited [the first named applicant] to provide further evidence or submissions. He provided further letters by [Mr D] and [Mr E] that referred to the voluntary work he has done for their organisations. [The first named applicant] did not otherwise provide evidence or submissions to indicate that there has been a material change in circumstances.
The basis for exercising discretion favourably does not exist in this case. Even if there were the basis for exercising discretion favourably, the Tribunal would have to consider all the circumstances. In the particular circumstances of the present case, the reasonable suspicion that the Tribunal has about the skills assessment necessarily involves a reasonable suspicion that [the first named applicant] has knowingly sought to benefit from fraud. The fraud may have been committed years ago and may be contrary to [the first named applicant]’s otherwise good character, as his character is described especially by [Mr D] and [Mr E]. Still the Tribunal has noted aspects of [the first named applicant]’s more recent oral evidence that are of concern. In all the circumstances, the Tribunal considers that this would not be a case in which it should exercise the discretion in [the first named applicant]’s favour.

100. The main issue for the Tribunal is whether it is satisfied that there is no evidence that [the first named applicant] gave or caused to be given to the Minister a bogus document in connection with the applications for the visas. Applying what has been described as a “relatively undemanding test” (Singh v MIMAC [2013] FCCA 1435 at [25]), the Tribunal considers that the TRA skills assessment is a bogus document. For the reasons given, the Tribunal is not satisfied that there is no evidence that [the first named applicant] gave or caused to be given to the Minister a bogus document in connection with the applications for the visas. And the Tribunal is not satisfied that there are relevant circumstances permitting waiver, or that the relevant requirements should be waived.
CONCLUSION
101. For the reasons given above, the Tribunal concludes that [the first named applicant] does not meet cl.4020(1) and considers that the requirements of cl.4020(1) should not be waived. [The first named applicant] therefore does not satisfy PIC 4020 for the purposes of cl.886.225.
102. The other subclasses in Class VB are subclasses 885 and 887. [The first named applicant] cannot meet the requirements for those visas because he does not satisfy PIC 4020: see cl.885.224 and 887.223.
103. [The second named applicant] and her son do not meet the secondary requirements in cl.885.311 and cl.885.321 or cl.886.211 and 886.321 or cl.887.311 and 887.321. That is because, in particular, they are not members of the family unit of a person who satisfies the primary criteria.
DECISION
104. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
John Billings
Senior Member
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.

…
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.

…