1910318 (Migration)

1910318 (Migration) [2020] AATA 5479 (20 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1910318
MEMBER:Helena Claringbold
DATE:20 December 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.
Statement made on 20 December 2020 at 12:42pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – bogus document or false or misleading information – sponsor’s partner altered police certificate to conceal serious criminal offences – alteration for job application, not for visa application – applicant and sponsor aware of jail term but not of serious offences and alteration of certificate – requirement applies even if document provided unwittingly – no compassionate or compelling circumstances to waive criterion – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 5
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 101.223; 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

On 24 September 2018, [Miss A], the visa applicant, applied for a Child (Migrant) (Class AH) visa. The application was based on the visa applicant’s relationship with [Ms B], the sponsor and review applicant.
On 11 April 2019, a delegate of the Minister of Home Affairs refused to grant the visa. The delegate was not satisfied that the visa applicant meets the Public Interest Criterion (PIC) 4020 of Schedule 4 to the Migration Regulations 1994 (the Regulations). Therefore, the visa applicant did not meet cl.101.223 of Schedule 2 to the Regulations. On 24 April 2019, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.
On 9 December 2020, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s partner [Mr C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The sponsor told the Tribunal both at the beginning and at the end of the hearing that she understood the interpreter clearly.
The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Home Affair’s (the Department’s) case file, the Tribunal’s case file and the evidence at the Tribunal hearing.
BACKGROUND ON THE EVIDENCE
On [Date 1], the visa applicant was born in Da Nang, Vietnam. She was [age] years of age on the date she lodged the visa application. Her biological parents are [Ms B], the sponsor and [Mr D].
On [Date 2], the sponsor was born in Da Nang, Vietnam. Her parents are deceased. She has [a number of] siblings living in Vietnam and one sibling living in [Country 1]. In March 2009, the sponsor and [Mr D] divorced. [In] July 2014, she entered Australia as a holder of a [Visitor Visa]. [In] May 2015, she registered her de facto relationship with [Mr C], who was born in [year], in Sydney, Australia. [In] September 2018, the sponsor was granted a [Permanent Visa]. [In] July 2020, she became an Australian citizen by grant. She is the holder of a Vietnamese passport valid until 2028.
[Mr D] remarried and has a child/children of that relationship. His parents and [a number of] siblings live in Vietnam. He has one sibling living in [Country 1].
Public Interest Criterion 4020
The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.101.223 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).
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). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
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.
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.
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.
'Bogus document' is defined in subsection 5(1) of the Act.
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.
A document only needs to meet one or more of the above definitions (a) to (c) above to be a bogus document. The following examples are not exhaustive, but only seek to demonstrate the wide range of documents that fit the definition of bogus document in the legislation.
As detailed in the delegate’s decision record, the following information was given as part of the visa application.
·On 10 December 2018, a copy of a National Police Certificate (NPC), Complete Disclosure issued by the Australian Federal Police (AFP) for [Mr C] dated 10 May 2018 was given to the Department. [Mr C] is the sponsor’s partner. The NPC was printed onto coloured textured paper.
·Departmental checks confirmed that the NPC for [Mr C] had been:
‘fraudulently altered to conceal serious offences against a child/children from the court date [September] 2003 which included the following:
(1) Cc Indecent Treatment of Children under 16 (Two Charges)
(2) Cc Attempted Incest
(3) Rape (Two Charges)
On 8 January 2019, the Department received an updated Form 47CH signed by the visa applicant and a Form 40CH signed by the sponsor and the sponsor’s partner.
Question 58 on form 47CH which requires that an applicant over 16 years of age sign the declaration. This declaration includes a warning that giving false and misleading information or documents is a serious offence. In signing the declaration, the applicant declares that they understand the information supplied in the (visa) application and that the information is complete, correct and up to date in every detail and that they have read and understood the information supplied to them in the visa application. This section was signed by the visa applicant on 2 January 2019.
Question 52 on Form 40CH which asks if the sponsor’s partner has ever specifically, been convicted of a crime or offence in any country (including any conviction which is now removed from official records), relating to persons under 18 years of age, including but not limited to: child abuse, child sex, endangering a child, indecent dealings with a child, or possession of child pornography? A response of ‘no’ was provided. Further, the sponsor’s partner signed ‘Part P – Your partner’s acknowledgement’, in which he declared that the information in the form is complete, correct and up to date in every detail, which was signed on 26 December 2018.’
·On 25 January 2019, the Department provided the visa applicant 28 days to provide comment on the suspected ‘non-genuine’ information supplied to the Department and to specify whether they believed there were any circumstances to justify the waiver of PIC 4020. The Department extended time for the visa applicant to comment, however at the time of the delegate’s decision comment had not been provided.
On 17 September 2018, the migration agent stated that the visa applicant had not provided any bogus at the time of applying for the visa.
Information provided to the Tribunal in support of the visa application includes the following:
·Various bank statements in the sponsor’s name and receipts noted as the visa applicant’s school receipts and letter of verification from a university.
·An undated letter from the visa applicant where she details her circumstances. She gave information including the following. Her parents breaking up was difficult for her. She really needs a family and her grandparents are old. She is proud of the sponsor who cares for her. However, they live separately and the applicant feels lonely and sad. She was granted a scholarship to study in [Country 2] but turned it down because she wants to live with the sponsor in Australia. [Mr C] is like a father to her and sends her gifts. Her father has a new family and does not have time for her. The sponsor has tried a lot of ways for her to come to Australia. She does not address the issues relating to PIC 4020.
·In a statutory declaration dated November 2020 [Mr C] stated the following. He was arrested, charged and sentenced for crimes he did not commit and this has affected him personally and emotionally. The circumstances that led to his sentencing were orchestrated by his ex-wife and her family to obtain money and property. These circumstances included false accusations made against him, the bribing of the judge hearing his matter, the prosecutor and his lawyer and attempts on his life while in prison. Life in prison was difficult for him but through hard work and helping others he progressed to the position of [Occupation 1]. In this role he was in charge of all of the families and children when they were together. He spent years trying to clear his name to no avail. Some of the guards in the prison didn’t believe that he was guilty of the charges that saw him imprisoned. After serving three years of his four-years sentence because of his good behaviour, he was paroled from prison. Recently his daughter-in-law was hospitalised and he took care of her children.
Initially he was friends with the sponsor and this friendship led to them having a relationship, which he didn’t think would happen to him. He didn’t want to tell the sponsor ‘the lie that put’ him in prison because after many years he was happy in a relationship. He told the sponsor that he went to jail because he assaulted someone and she didn’t care about his past. He didn’t tell the sponsor of his offence in full because he was afraid of losing her. He has known the visa applicant since 2014 and has never done or said anything to hurt her which speaks to his innocence. The visa applicant needs the sponsor and there is no one to care for her in Vietnam. The sponsor and visa applicant want to be together.
·In a written statement [Mr C]’s daughter-in-law stated that he is a great father-in-law and has cared for her children while she was hospitalised and always assists when she needs help. She knows about his past but it is in the past. She trusts him, otherwise she would not leave her children with him. In an undated letter [Ms E] stated that the sponsor has worked as [an Occupation 2] and for 19 years worked for the company. She confirms that she is a good person. On 22 March 2019, [Mr F] stated that he has known [Mr C] for three and a half years and vouches that he is a decent, hardworking and trustworthy person. In an undated statement [Mr G] stated that [Mr C] has worked for a [business] group for three years. He feels [Mr C]’s work ethics are exceptionally high and he is a pleasure to work with and has been nominated and won employee of the month.
In December 2020, the migration agent provided the following information. The visa applicant did not cause the bogus document to be provided (to the Department) and the sponsor has since discovered why [Mr C] amended the NPC. She quotes [Mr C] as providing information in a statutory declaration as follows:
‘I spent years trying to clear my name and to have my record expunged but to no avail. When I applied for a job at the [workplace] just as [an Occupation 3] year back the Australian Federal Police, NPC sent me a letter to ask about my record. I was honest with the officer I rang told him everything the truth the payoffs to put me inside, all of it. He could sympathize with me but said he could not do anything to help. It was not up to him to clear my record or to help for. When I told him I already have written to the ombudsman and rang their office to get their help and they said they could not, the AFP officer said that all my options are spent. He the officer was very nice and understanding but from then on after I decided to change my documents to just say assault because I couldn’t get rid of the record all together and I was innocent of all these charges anyway and felt so wronged for being punished for a crime I did not commit. I was really upset with everything, it my record always made me sad and made some trouble for me. Anyway, the main reason after I could not clear my name was so I could apply for work which it did because almost always the people who want to employ me needed copy of my record. I am just [Occupation 3], and it is a low job, but I get payed and I keep out of everyone’s way. Most people today have some sort of record and my record just says assault which is most common. So that was my reason for changing it and I have had it changed for many years and it has helped me with getting a job. This was the same paper work I sent for helping [Ms A] and I didn’t think it would be found out to be altered because it never had before and I really wanted to help [Ms B] and [Ms A] so they could finally live together as mum and daughter. I never told [Ms B] because there was no need to, she only knew I was in jail for assault and she said the past is in the past we look to the future. [Ms B] looked at me like I was a good man for which I am and was till that day 20 years ago and went to jail. [Ms B] could see that good man in me even after all the hurt pain I went through. Because of that I did not want to lose her and because I knew in my own heart her daughter [Ms A] will be safe here. I never asked [Ms B] about the hard time she had with her ex-husband, the abuse mental emotional physical she just said also it is in the past. I never meant to deceive anyone or to break any laws, I was only concerned about getting [Ms B]’s daughter [Ms A] here for her to be happy and whole family. [Ms A] has no one to look after her and we have been fighting to get her hear for a long time and my wish is for that to come true. Please don’t ruin that for her and [Ms B] because I did something wrong for which I am very sorry. My concern was for my girls nothing more.’
On 3 December 2020, the Tribunal wrote to the migration agent and advised that in her submission she referenced that a statutory declaration from [Mr C] being attached. However, the email she sent did not have attached this statutory declaration. She was requested to provide a copy of this statutory declaration from [Mr C]. At the time of this decision this has not been provided.
The sponsor told the Tribunal the following. She didn’t know of [Mr C]’s criminal history and believes him to be a kind and caring person who is respected by other people.
[Mr C] told the Tribunal the following. He always believed that he was innocent of the charges against him. When he applied for work, he was asked to provide a police clearance. He deleted the details of his criminal charges on the NPC and altered it to record lesser charges. He also signed the declaration in which he declared that the information in the form to be complete, correct and up to date in every detail. He took these actions to assist the visa applicant to come to Australia to be with the sponsor and took a chance hoping that the altered NPC would not be detected. Neither the sponsor or the visa applicant knew of his criminal record or that he had altered the NPC.
The Tribunal considered the evidence individually and completely. The sponsor argues that she didn’t know of [Mr C]’s criminal record and the NPC check was given as part of the visa application. [Mr C] argues that he altered the NPC to assist him find employment. He stated that he didn’t tell the sponsor about the true nature of his criminal history for fear of losing her. He claims that he provided the altered NPC check to assist the visa application and for the visa applicant and the sponsor to be together.
The Tribunal is satisfied on the evidence that the NPC in relation to [Mr C] has been altered to record two charges of grievous bodily harm and breach of bail and to conceal [Mr C]’s serious offences against a child/children, including two charges of indecent treatment of children under 16, attempted incest and two charges of rape. It is satisfied that the altered NPC was given to the Department in relation to the application for the visa. The migration agent stated that the sponsor and visa applicant didn’t know that the NPC had been altered and therefore did not cause it to be given. Regardless of whether the sponsor and the visa applicant knew the NPC had been altered, the document was given in relation to the application for the visa. The Tribunal finds that the visa applicant caused the NPC check to be given to the Department in relation to the visa application.

The Tribunal is satisfied on the evidence that the NPC has been altered by a person who does not have authority to do so. The Tribunal is satisfied that the NPC is a bogus document. Therefore, the Tribunal is not satisfied 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 in relation to the visa application.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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) of the Regulations, 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.
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.
There is no evidence of compelling circumstances that affect the interests of Australia.
Are there 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?
Prior to and at the Tribunal hearing the sponsor provided information for consideration against compassionate or compelling circumstances that justify the granting of the visa as follows.
In March 2018, [Mr D] stated the following. After his divorce from the sponsor the visa applicant was sent to live with her grandparents. He remarried in 2013 and has a child with his current wife. Because of financial hardship he is unable to support the visa applicant. In an undated letter of authorisation, he gives permission for the sponsor to decide all matters related to the visa applicant’s settlement in Australia.
In a written statement the visa applicant provided the following information. When she was [age] years old her parents’ relationship broke down. Her mother moved far away. Her father had a new family. She moved to live with her grandparents who are old. She was offered a scholarship to study in [Country 2] but refused it as she wants to live with the sponsor.
In a written statement [Mr C] stated the following. The sponsor and the visa applicant should not be apart for the length of time they have been and it is wrong for this separation to continue. They want to be together and share their lives together. He told the Tribunal that the sponsor and the visa applicant should be together and need to be together.
The migration agent provided to the Department a statutory declaration dated April 2018, where the sponsor stated the following. She was previously married to [Mr D]. They divorced in March 2009. Due to her work commitments she travelled regularly and the visa applicant has been living with her paternal grandmother. She has supported the visa applicant financially since the divorce. The sponsor told the Tribunal the following. She lived in a violent relationship with [Mr D]. She didn’t have any choice but to agree to the terms of dissolution of marriage with him. He took responsibility to bring up the visa applicant until she turned 18 years of age and she was declared as having no common support obligation. The visa applicant has lived with her paternal grandparents since she was [age] years old and continues to live with them and sometimes her uncle also lives there. As the only grandchild her grandmother was particularly keen to have her live with her and the sponsor could not go against her, but now there are other grandchildren and the visa applicant receives less attention. The sponsor appreciates that the visa applicant’s grandparents have allowed her to live with them. They are [age] years old and continue to run a small business selling [product] from the front of their home. The visa applicant does not want to live with any of the sponsor’s siblings. The visa applicant is in her second year of a four-year course of study in [subject]. The sponsor worries about the visa applicant living with her grandparents, ‘if a person does not live in a good environment, they will turn out bad’. [Mr D] loves the visa applicant but he has remarried and has a family and has no time for the visa applicant and is unemployed. The sponsor has always supported the visa applicant financially. When the sponsor lived in Vietnam the visa applicant was with her on weekends and since the sponsor came to live in Australia, she has visited the visa applicant and they stayed at the sponsor’s sisters place. She has always wanted the visa applicant to be with her but her in-laws didn’t want that because she was the only grandchild. She has invested in the visa applicant and cared for her and payed for her education. She wants to be able to guide the visa applicant and ensure that she is a good person and the visa applicant wants to be with her.
In September 2018, the migration agent stated the following. After the sponsor’s divorce a decision was made for the visa applicant to live with and be cared for by her paternal grandmother, [Ms H]. In early 2015, the sponsor was granted a visa based on her relationship with [Mr C]. The migration agent stated the following. The visa applicant has not had an easy life in the care of her grandparents. Her living conditions are not suitable and she is now excluded from [Mr D]’s life. The bond between the sponsor and the visa applicant is strong. The sponsor cannot live in Vietnam because [Mr C] cannot travel. This presents the sponsor with the decision of whether to leave her partner and live with the visa applicant in Vietnam or continue to live with [Mr C] and leave the visa applicant in Vietnam. The maternal bond is strong and should be considered as compassionate grounds for the grant of the visa. In December 2020, she added that there is no greater bond than a bond between a mother and child, even greater is a bond between a mother and daughter.
Documents provided include the following:
·    A household registration book which recorded that the visa applicant began living with her grandmother from July 2007, along with the sponsor. The visa applicant’s [number of] uncles and one aunt and one aunt-in-law are also recorded as living at this address.
·    ‘A decree on approving the mutual consent on marriage dissolution and agreement between the concerned’ issued by the Socialist Republic of Vietnam, People’s Court of Son Tra District Danang City [in] March 2009. It recorded the following: the sponsor was the petitioner and [Mr D] the respondent; the specific agreement between them regarding the visa applicant; [Mr D] took responsibility to directly bring up the visa applicant until she is 18 years old; the sponsor has no common child support obligations. In necessary cases, the concerned are entitled to ask for change in taking care of the visa applicant or the level of support given; voluntary payment of court charges was made by the sponsor and receipted to her.
·    A document headed ‘Socialist Republic of Vietnam’ dated 19 March 2018. In the document [Mr D] stated that he and the sponsor divorced [in] March 2009. After the divorce and because he was financially unable the sponsor was awarded child custody. Due to the nature of her work the sponsor had to go on regular business trips and the visa applicant was sent to live with her grandparents. The sponsor supported her financially.
The Tribunal considered the evidence individually and completely. The Tribunal understands that the sponsor and her daughter may want to be together and that them being separated may cause difficulties. However, the evidence before the Tribunal is that the sponsor and the visa applicant have been living apart since the visa applicant was [age] years old. At that time, a court determined that by mutual consent [Mr D] took responsibility for the visa applicant up until she turned 18 years old and the court determined that the sponsor didn’t have any child support obligations. The document where [Mr D] states that the sponsor was granted custody of the visa applicant is puzzling. There is no independent evidence or claim by the sponsor to support this. In fact, the sponsor’s evidence to the Tribunal is that she had to agree to [Mr D] having responsibility for the visa applicant until she was 18 years old. However, what is clear is that the visa applicant has lived with her paternal grandparents since she was [age] years old and that she continues to live with them. In 2015, when the sponsor came to Australia, she had been living separately from the visa applicant for approximately [number] years. She decided to come to Australia leaving the visa applicant in Vietnam of her own volition. She could not have been under any misapprehension of the likelihood that the visa applicant would be unable to live in Australia. However, she willingly chose to apply for and was granted a visa to remain in Australia. The Tribunal is of the view that one way or another, the sponsor willingly chose to live apart from the visa applicant and has been apart from her for approximately [number] years. During this time the sponsor progressed her career in Vietnam before migrating to Australia where she has lived since 2015. Considering these circumstances, the Tribunal is not willing to accept that there are compassionate or compelling circumstances that affect the interests of the sponsor or her partner. The Tribunal is not willing to accept 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.
Other considerations
The Tribunals attention was drawn to previous Tribunal decisions. The Tribunal respects the previous decisions of the Tribunal; however, it feels it inappropriate to comment on those decisions. It is guided by court determinations and is not precluded in any way in considering Tribunal decisions and policy currently in force. Ultimately, the Tribunal’s responsibility is to consider the circumstances of each case before it and to make the correct or preferable decision on the evidence. The Tribunal has considered all the information before it and has progressively come to its decision having had regard to the individual and complete circumstances of this case as detailed above.
For the reasons above, the Tribunal is not satisfied that the requirements should be waived.
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.
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.
…

[2020] AATA 5479

20 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice