1803906 (Migration)

[2021] AATA 2023

1803906 (Migration) [2021] AATA 2023 (27 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803906

MEMBER:Helena Claringbold

DATE:27 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 300 (Prospective Marriage) visa:

·Public interest criterion 4020 for the purposes of cl.300.223 of Schedule 2 to the Regulations.

Statement made on 27 April 2021 at 2:43pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – false or misleading information – previous refused visa applications – outstanding debts to the Australian Government – waiver of requirement – compassionate or compelling circumstances – sponsor’s health condition – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 300.223; Schedule 4, PIC 4020

CASES
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
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

1. On 16 January 2017, [the visa applicant] applied for a Prospective Marriage (Temporary) (Class TO) (Subclass 300) visa. The application was based on her relationship with [the sponsor and review applicant].

2. On 3 January 2018, a delegate of the Minister of Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant meets public interest criterion (PIC) 4020 of Schedule 4 to the Migration Regulations 1994 (the Regulations). Therefore, the visa applicant did not meet cl.300.223 of Schedule 2 to the Regulations made under the Migration Act 1958 (the Act). On 14 February 2018, the review applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.

3. On 11 November 2020, the Tribunal wrote to the sponsor and requested that he provide a report from his psychiatrist, psychologist or medical practitioner or specialist to evidence that the sponsor has the competency to fully participate in a Tribunal hearing. The sponsor provided a letter dated 17 November 2020, from his medical practitioner.  It stated that the sponsor had been a patient since 2013. The medical practitioner  declared that he believed that the sponsor has sufficient insight and competence to fully participate in a Tribunal hearing.

4. On 16 March 2021, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

8. The issue in the present case is whether the applicant meets the PIC 4020 at the time of decision. If not, should the requirements of PIC 4020 be waived?

   BACKGROUND ON THE EVIDENCE

9. The visa applicant was born in [year] in the City of Vladivostok, Russia. Her parents are deceased. From 1969 to 2005 she was in a married relationship with Mr SV. There is one child of this relationship who lives in Russia. [In] October 2000, the visa applicant entered Australia as a holder of a [temporary visa]. In 2013, she departed Australia.

10. The sponsor was born in [year] in [Town 1], Armenia. His parents are deceased. [Number] of his siblings live in Armenia and one sibling lives in Russia. [In] May 1995, the sponsor entered Australia. [In] August 1997 he became an Australian citizen by grant. From 2010 to 2015, he was in a married relationship with Ms [deleted]. There are no children of this relationship.

11. On 8 December 2000, the visa applicant and the sponsor (the parties) met. In January 2001, the sponsor proposed to the visa applicant. However, the visa applicant declined as was still legally married. From 2001 to 2009, the parties claim to have lived in a de facto relationship. On 31 October 2013, the parties claim to have rekindled their relationship.

    Public interest criterion 4020

12. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.300.223 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).

13. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons 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). Public interest criterion 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?

14. 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.

15. 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.

16. 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.

17. The delegate’s decision informed the Tribunal of the following information. On 16 January 2017, the visa applicant provided information to the Department considered to be of a ‘non-genuine’ nature.

18. On the visa application form generated on 16 January 2017, the visa applicant answered no to the question, ‘Has the (visa) applicant or any person in this application ever been refused an entry permit or a visa to Australia?’

19. On 16 February 2001, the visa applicant was refused a Subclass XA866 visa. The decision went to the Refugee Review Tribunal (RRT) and the decision was affirmed on 24 October 2002.

20. On the visa application form generated on 16 January 2017, the visa applicant answered no to the question, ‘Has any applicant ever had any outstanding debts to the Australian Government or any public authority in Australia?’

21. The visa applicant had a $1,000 debt with the Commonwealth which was incurred regarding the RRT decision for the Subclass XA866 visa application.

22. On 22 December 2017 and 2 March 2021, the migration agent, provided information including the following. In 2016, the visa applicant planned to apply for a Prospective Marriage (Temporary) (Class TO) (Subclass 300) visa and felt confused with her visa history.  On 16 December 2016, a Freedom of Information (FOI) request was lodged to obtain reliable information about the visa applicant’s visa history. For over eight months the visa applicant’s file was not provided by the Department. On 19 April 2017, the Department requested that a completed Form 80 be provided.  This was not provided initially as the FOI request had not been completed. On 1 October 2017, the FOI information request was received. Therefore, the visa applicant could not provide the correct answers in the 2017 visa application as she had not been given access to the information and relied on her memory and her understanding of her visa history was nor sufficient. In addition, the migration agent had difficulty getting proper instructions from the visa applicant about her migration history as she had no real idea of what happened back then. 

23. The migration agent continued and stated that she is instructed as follows. The visa applicant does not speak English. She asked her friend in Russia and the sponsor to help her answer the questions in the 2017 visa application. The visa applicant provided the answer ‘no’ in response to the question on the visa  application form, ‘Has the applicant or any other person included in this visa application ever been refused an entry permit or visa to Australia?’. With her friend and the sponsor translating, she understood that the question was about her physical entry to Australia, so she said, ‘I have never been refused entry to Australia’. Neither the visa applicant, the sponsor nor the migration agent were fully aware of the visa applicant’s history.  The visa applicant knew that she came to Australia as the holder of a [temporary] visa. She has no idea of the steps taken to keep her in Australia 15 years ago by ‘unscrupulous people’. She had no knowledge of the (visa) applications lodged and the answers provided by them on her behalf. She didn’t know that she had lodged a visa application that had been refused. She accepts that she had to sign documents to extend her visa ‘whether she knew what was in them or not’. She was not aware that she applied to the ‘RRT and lost it’. She remembered that her migration agent at the time told her that they couldn’t do anything more to extend her stay in Australia.

24. The migration agent stated as follows. She told the applicant that it is unlikely that the Department would accept that she didn’t know that she had lodged the visa application which was refused and that decision was upheld by the RRT or that she liable for the application fee if she lost. The wrong answers that were provided by her previous migration agent are generally taken to be her answers. Once the FOI request had been completed the visa applicant provided correct answers to the information deemed to be false and misleading. The Department’s letter referred to an invoice raised on 31 October 2001 for a $1,000 debt to the Australian Government. The applicant did not receive this invoice.  She had multiple interactions with the Department in the following 10 years while in Australia and had never been informed by the ‘delegates’ of the Minister that she had a debt to pay.

25. Since receiving the letter from the Department, she has settled the debit on 16 November 2017. She does not have any debt to the Australian Government. After the FOI request was received and after the visa applicant became aware of it the correct information was provided to the Department. The visa applicant unwillingly provided this information (the initial answers to the questions) without the intention to do so and provided the correct information on receipt of the FOI request. As the correct information was provided and the debt to the Australian government paid, the misleading information provided by the applicant may not be relevant when making a decision on the review.

26. The Tribunal is not satisfied that there is no evidence that the visa 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, 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. 

27. The visa applicant argued that she does not speak English and the information provided on the visa application form is a result of translation assistance given by her friend and the sponsor.  She stated that when the question, ‘Has the (visa) applicant or any person in this application ever been refused entry permit or a visa to Australia?’ she understood the question to relate to her physical entry to Australia, and declared ‘I have never been refused entry to Australia’. She goes on to argue, that she came to Australia as the holder of a [temporary] visa. She had no idea of the steps taken to keep her in Australia 15 years ago by ‘unscrupulous people’. She had no knowledge of the (visa) applications lodged or answers provided on her behalf. She didn’t know that she had lodged a visa application that was refused. She didn’t know about the application for review to the RRT or that it was not successful. She accepts that she signed documents to extend her visa ‘whether she knew what was in them or not’. She remembers her migration agent at the time told her that they couldn’t do anything more to extend her stay in Australia.

28. In a post hearing statutory declaration dated 18 March 2021, the sponsor provided information including the following. At the Tribunal hearing when he was asked about the letter from the Department that the visa applicant showed him in 2000 or 2001, he said that he had enough English to translate it. However, he was answering this question from his understanding of English now. However, in 2000, his English was poor. He would have attempted to explain the content of the letter to the visa applicant. The visa applicant was working with and trusted her migration agent. He had not heard the visa applicant mention anything about 'refugees', until they received a letter from the Department in August 2017. The content of the letter shocked the visa applicant and the sponsor. They were unaware of the multiple visa applications that were lodged under the visa applicant’s name and the final decisions in their regard. Neither the sponsor nor the visa applicant realised that there was a debt to the Commonwealth.  However, once the invoice was received in 2017, the debt was paid. The visa applicant always intended to return home. However, when her son sold her apartment, it meant she had nowhere to go. After 10 years the visa applicant’s son could purchase an apartment for her and she returned home.  

29. In a post Tribunal hearing submission, the migration agent stated the following. As well as being a migration agent she is a NAATI certified interpreter and translator. She is concerned that the interpreter was not efficient and that could have affected the overall impression of the visa applicant’s position and, obviously, might have infected the decision. She received the recording of the Tribunal hearing and the interpreter instead of asking the visa applicant to keep her statements in short (to allow for interpreting) told the visa applicant to stop talking. This resulted in the visa applicant providing, at times, cumbersome, confused, and indefinite answers because the translator was commanding her to cut off her answers. This is unfair because the visa applicant was not able to prove her points as she was told to stop talking. Indeed, I can confirm that both the sponsor and visa applicant understood the interpreter; however, they did not know that the interpreter was missing the point. The visa applicant never intended to stay in Australia for 10 years with a view to obtaining an amnesty. She always intended to leave Australia, which she did once she had a place to live in her home country.  The overall level of severity of the visa applicant’s PIC 4020 allegations are low. She made unintended mistakes when she completed the Subclass 300 visa application. Having retrieved her migration history, the visa applicant stands by her corrected answers as made in the Subclass 300 visa application.

30. The Tribunal is perplexed by the claims made by the migration agent about interpreting services during the Tribunal hearing. Neither, the representative, the sponsor nor the visa applicant raised any concerns during the Tribunal hearing about any difficulties with the interpreting. In fact, the sponsor and the visa applicant declared that they understood the interpreter clearly. If there were times when the visa applicant was directed by the interpreter to stop talking, instead of keeping her statements short, this was not drawn to the Tribunal’s attention during the Tribunal hearing. Neither has the representative provided a translation transcript of the Tribunal hearing. The Tribunal will consider all of the evidence before it, before coming to its decision.  The Tribunal is satisfied that the sponsor has been provided a fair and just Tribunal hearing and review of the visa refusal.

31. The Tribunal does not accept the arguments put forward. The visa applicant entered Australia as the holder of a [temporary] visa. She would have been fully aware of the process of applying for a visa, the conditions on the visa to enter and remain in Australia and the requirement to provide correct information as part of a visa application. She appears to have understood other questions on the visa application form, including answering yes to the question ‘Has any (visa) applicant ever overstayed a visa in any country (including Australia)?’ She declared ‘I have overstayed my visa in Australia.  In 2013, I decided to leave Australia and bought a ticket to Russia and came to the Immigration Department about my Bridging visa E.  I left Australia [in] June 2013.’ Her clear responses to these questions and other questions on the visa application form indicate that whatever assistance she was receiving was proficient. In addition, she recorded yes to the declaration to ‘Have read and understood the information provided to them in this application’ and ‘Have provided complete and correct information in every detail in this form.’ She further argues the following. She didn’t know what steps were being taken ‘to keep her in Australia’.  She had no knowledge of the (visa) applications lodged or the answers provided on her behalf or that she had lodged a visa application that had been refused. She was not aware that she applied to the ‘RRT and lost it’. Yet she declared that she had to sign documents to extend her visa ‘whether she knew what was in them or not’. This shows a willingness to remain in Australia through any measure and a complete disregard for immigration law in Australia and the requirement that an applicant give information that is not false and misleading. The Tribunal is of the view that The visa applicant clearly understood that she was required to have a visa to remain in Australia and was fully aware of her actions and made a predetermined decision not to disclose the information about her previous visa application and its refusal or about her debt to the Australian Government.  

1. The Tribunal is of the view that the visa applicant could not have misunderstood the significance of declaring no to the question ‘Has the (visa) applicant or any person in this application ever been refused entry permit or a visa to Australia?’, when clearly on 16 February 2001, she was refused a Subclass XA866 visa which was reviewed by the RRT and affirmed on 24 October 2002 and she said no to the question, ‘Has any applicant ever had any outstanding debts to the Australian Government or any public authority in Australia?’, when clearly the visa applicant had a $1,000 debt with the Australian government which was incurred regarding the RRT decision for the Subclass XA866 visa application. The Tribunal finds that the visa applicant in not disclosing the information about her previous visa application and the refusal of the visa application and not disclosing that she had a debt to the Australian Government, the visa applicant has given, or caused to be given, information in support of her visa application that was false or misleading, at the time it was given, in a material particular and that the information the parties gave was provided intentionally to secure the grant of the visa.

2. The Tribunal considers that the visa applicant in not declaring she was refused a Subclass XA866 visa which was reviewed by the RRT and affirmed on 24 October 2002 and that she has a debt to the Australian Government causes doubt about her credibility and the truthfulness of the information she provided in the partner visa application. The information relating to the visa refusal and its review may have been relevant to the criterion in cl.300.211 of Schedule 2 to the Regulations.

3. Therefore, the applicant does not meet PIC 4020(1) of Schedule 4 to the Regulations.

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

4. 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 r.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.

5. 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.

6. There is no evidence of compelling circumstances that affect the interests of Australia.

7. On 22 December 2017 and 2 March 2021, the migration agent provided information including the following. The sponsor arrived in Australian in 1995. He is an Australian citizen. He learnt English and about a year later began working in the field of [Industry 1].  His positions ranged from a [Occupation 1] at the AT to a [Occupation 2] at SC. He also contributed to [projects] for QA and E C. His work at AT was physically and mentally demanding.  He was required to work in such a way that after several months he developed a medical condition requiring several hospitalisations. In 1996 he was diagnosed with bi-polar disorder. He became depressed and could no longer work for AT. He returned to work in his field while on medication. From 1996 to 2012 he worked as a sole trader. Since 2001 with the help of the visa applicant his medical condition has improved with medication and a healthy lifestyle. She ensured the sponsor took his medication and cooked healthy food and kept the house clean. As a result, the sponsor had positive thoughts and self confidence and managed his mood disorder and wanted to live. When the visa applicant left Australia in 2013, the sponsor’s condition worsened and led to emergency hospitalisation in 2015. He has bipolar affective disorder and relies heavily on medication to control his mental disorder. He experienced multiple hospitalisations due to his mental condition. He experiences severe depression and has difficulty sleeping. He has moderate obstructive sleep apnoea and Diabetes Type 2 and relies on insulin injections. He was hospitalised in 2015 due to a diabetic coma. He has chronic kidney disease and end-stage renal failure and must have haemodialysis at least three times a week and is unable to work.

8. The migration agent continued. As a result of the sponsor’s medical conditions and since becoming separated and divorced he has required high dependency care and assistance in daily living activities including taking medicine and injections on time, cooking food, home maintenance and sleeping. In 2010, he married but the relationship ceased. The marriage was at the insistence of the visa applicant who had to leave Australia and the sponsor without support and to unsure that he had help with these activities. The parties maintained a close relationship. The visa applicant supported the sponsor from 2000 to 2012 and from 2013 to the present time. Her support allowed him to maintain employment until 2012 despite his mental health conditions. The sponsor continued to be supported by the visa applicant and his psychiatrist and family doctor. The visa applicant supports the sponsor by communication via telephone, Viber and WhatsApp and reminds him about his medication, encourages his good mood and instructs him in cooking. He is fearful about the future and hopes to have a life in Australia with the visa applicant. He requires ongoing medical treatment for his life-threatening medical conditions and has constant feelings of sadness, confusion and fear relating to living alone and his medical conditions are exacerbated. He does not have family in Australia and is isolated. He cannot live in another country because of his medical conditions. Having close contact with the visa applicant would provide him with family and social support and help with his day-to-day activities. In the last three years the sponsor’s condition has worsened and he is in a highly stressful state and it is necessary that the visa applicant is with him. The severity of the alleged fraud is minor when considered against the negative impact on the sponsor should the visa not be granted. In conclusion the migration agent stated, ‘We are living in times of an unprecedented crisis. It is hard for an average person to survive in the COVID-prone world, to say nothing of the mentally ill and physically disabled people. The visa applicant submits that compassionate or compelling circumstances exist affecting the sponsor, her partner of 20 years.

9. There are multiple documents and a great deal of information about the sponsor’s health including the following. A letter dated 17 November 2020, from his medical practitioner who declared that. The sponsor’s past medical history is that of hypertension and obesity. In 1996 he was diagnosed with bipolar affective disorder, in 2014, diabetes mellitus, type 2, in 2015, proteinuria and moderate obstructive sleep apnoea and in 2016, chronic kidney disease stage 5. The medical practitioner stated that the major medical issue at present is his end-stage renal failure that will have him start hospital dialysis in the next month. Other medical information relates to the sponsor’s failing health and social isolation and the benefit to him having the visa applicant in Australia to support him.

10. The Tribunal considered the evidence individually and completely. The Tribunal makes no finding on the parties’ relationship and accepts it at face value. The Tribunal does not condone the visa applicant’s complete disregard for immigration law in Australia. However, the Tribunal turned its mind to the chronic medical condition the sponsor suffers from and his desire to have the visa applicant with him. It is sympathetic to the sponsor’s needs as an Australian citizen living in Australia. The Tribunal is satisfied on the evidence before it, that there are compassionate circumstances that affect the interest of the sponsor who is an Australian citizen, that justify the granting of the visa.

11. The Tribunal is satisfied that the requirements of PIC 4020(1) should be waived.

12. On the basis of the above, the applicant satisfies PIC 4020(1) of Schedule 4 to the Regulations for the purposes of cl.300.223 of Schedule 2 to the Regulations.

    DECISION

13. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 300 (Prospective Marriage) visa:

    ·Public interest criterion 4020(1) for the purposes of cl.300.223 of Schedule 2 to the Regulations.

    Helena Claringbold
    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. 

    …