2107289 (Migration)

2107289 (Migration) [2022] AATA 2911 (29 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Felice Chen
CASE NUMBER:  2107289
MEMBER:R. Skaros
DATE:29 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations.

Statement made on 29 July 2022 at 4:31pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – false or misleading information and bogus documents given with previous visa application – work history and employment reference – department’s verification checks found limited independent evidence of employment –discretion to waive criterion – non-compliance admitted – claim to have been unaware of information and document provided by agent – compelling circumstances affecting interests of Australia – labour and skills shortages in work sector – applicant’s demonstrated skills and experience and value to employer – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 375A
Migration Regulations 1994 (Cth), Schedule 2, cls 186.213(1), 457.223(2)(d), Schedule 4, criterion 4020(1), (3), (5)
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) 220 FCR 169
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 for review of a decision made by a delegate of the Minister for Home Affairs on 21 May 2021 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 20 April 2020. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 186.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that Public Interest Criterion 4020 (PIC 4020) had not been met.
The applicant provided a copy of the delegate’s decision record with the application for review.
The Department’s file includes a non-disclosure certificate issued under s.375A of the Act in relation to various documents. The reasons contained in the certificate for the non-disclosure (in respect of each specified document) is that disclosure would prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance. The Tribunal notes that the information covered by the certificate relates to general allegations received by the Department that persons sponsored by [Company 1] had provided fraudulent documents. The information also relates to the process of commencing investigation of the allegations. The Tribunal invited the applicant to comment on the validity of the certificate at the hearing. The applicant’s representative stated that the certificate appears to provide a valid public interest reason for the non-disclosure and on this basis the applicant has no issue its validity.
The Tribunal is satisfied that the certificate is valid, and that the information covered by the certificate, in as far as it relates to the applicant’s employment claims, were disclosed to the applicant by the Department in a natural justice letter, to which the applicant had an opportunity to respond, and which were also set out in the delegate’s decision record.
The applicants appeared before the Tribunal by video conference on 14 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, [Ms A], and their eldest son, [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the [Language] and English languages.
The applicants were represented in relation to the review. The representative attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
consideration of claims and evidence
The applicant was nominated by [Company 1] for the Subclass 186 visa (Labour Agreement Stream) for a position. Departmental records indicate that the nomination to which the position relates was approved by the Department on 23 April 2020. Departmental records do not indicate that the nomination associated with this visa application has been withdrawn. It appears, on the records available to the Tribunal, that the associated nomination has been approved and has not been withdrawn. Further, based on the recent supporting written and oral evidence received from the executive managers of [Company 1], details of which are discussed further below, it appears that the position to which the nomination relates remains available to the applicant.
Does the applicant satisfy the requirements of PIC 4020?
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 186.213 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). It also requires that 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).
The applicant must also satisfy 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.
In the 12 months before the Subclass 186 visa application was made, the applicant held a Temporary Work (Class UC) Subclass 457 visa. As part of the application for the Subclass 457 visa, an employment reference dated 18 January 2016 was provided. The employment reference, which appeared to be issued by the [Employer], indicated that the applicant worked as a [Job tasks 1 and 2] from 6 November 2011 to the date of issue. The reference was signed by [Mr C], Manager of the [Employer].
In January 2021, the Department’s overseas post sought to verify the information contained in the employment document. It was noted in the decision record that the business did not have a landline number registered in the local telephone directory and the number could not be found in Goodle and [Search engine] ([Country equivalent of] Google). The departmental officer, however, obtained a mobile number for the referee [Mr C] from [a business verification system website] as he is the Legal Representative of another company and had registered that number as a business contact. During the call, [Mr C] confirmed his identity. When asked about the applicant’s employment, he stated that [the applicant] used to work at [Employer]. It was noted that when the officer asked about the applicant’s employment duration and position, [Mr C] was unable to provide a clear answer or any details, stating only that the applicant helped in the [employer] many years ago.
When asked about the current operations of the business ([Employer]), [Mr C] indicated that the business was still operating but was being managed by someone else. When the officer requested details of the person managing the business and a valid business number on which she could contact that person, [Mr C] stated no person would be able to assist with the enquires and ended the call. It was recorded that the officer attempted to call [Mr C] back several times, but the calls were cut off.
Based on the above information and the limited independent evidence provided with the Subclass 457 visa application about the applicant’s claimed employment at the [Employer], the delegate formed the view that information that was false or misleading, in a material particular, had been provided with the Subclass 457 visa application.
The Department invited the applicant to comment on the above information, which it explained was relevant to whether the applicant satisfied the requirements in PIC 4020, as required by cl.187.213. In response to the natural justice letter, the Department received submissions maintaining that the applicant had worked for [Employer] in [Country] as claimed. In support of those submissions, various documents were provided, including a business licence for [Employer], payslips, a work roster, statutory declaration from the applicant and a skills assessment. It was submitted that the [Employer] business was small and as such there was no formal employment contract. It was also submitted that [Mr C] was a busy man, could not provide details of employment some 5 years prior and was not obliged to provide any further details about the applicant’s employment given the applicant had ceased employment with the business.
The delegate considered the response but was not satisfied that it overcame the adverse information obtained during the employment verification checks. The delegate considered the information to be relevant to the criteria in cl.457.223 about whether the applicant has the skills and experience suitable to perform the occupation: cl.457.223(2)(d).
On review, the Tribunal received a detailed statement from the applicant, together with a large volume of supporting evidence regarding the applicant’s current circumstances, which the Tribunal considered to be relevant to the issue of whether the requirements in PIC 4020(1) should be waived.
As to whether PIC 4020 has been engaged in this case, the applicant gave evidence that he did not work for [Employer] in [Country]. In his written statement and oral evidence at the hearing, the applicant stated that he found out about the [Work sector worker] visa to Australia in 2014 through his cousin. His cousin introduced him to an agent who informed him that he had to pass an English test and a skills assessment. He initially hesitated because of the English language requirement and high cost of the agent’s fees. He asked others about the program and received positive feedback from many people who had worked and lived in Australia with their families. He wanted to improve the educational prospects of his children. He found out about the physical aspect of the work, which many people could not handle, but he was not afraid of hard work as he had worked on construction sites for many years.
The applicant said he decided to resign from his job and commenced studying English. About one year later, in April 2015, he sat the test but only scored 4.5. He studied further and took another course in [University]. He sat another test in July 2015 and scored 5. In April 2015, as arranged by the agency, he went to [Part of Country] to participate in skills training. He did this for over one month, after which he passed the skills assessment conducted by an Australian Assessor. He said his assessment video was used as a model for training future trainees.
The applicant gave evidence that after passing the IELTS and skills assessment, the agent asked for further documents for the visa, but he had never been requested him to provide evidence of 3 years’ employment as a [Job task 1]. He said he was never informed this would be a requirement. The agent requested further funds from the applicant so he could lodge the visa, which the applicant paid. On 23 April 2016 the applicant was informed by agent that the visas were approved. The agent then demanded payment of the agency fee. After payment, a retired government leader gave them (the applicant and others) information about going to Australia, and they were each given a resume which they were told to memorise in case they were asked questions by customs. They were informed that any future visa documents should be answered in accordance with the resume. The applicant said they were perplexed and asked about the documents that had been supplied. He said they were told that other than the work experience document everything else provided was their original documents. The applicant said he had already paid the money to the agent, and he had been preparing for the IELTS for one and a half years and felt they could not nothing except depart for Australia.
At the hearing the Tribunal asked the applicant why, if he had been aware that false information about his employment in [Country] had been provided with the Subclass 457 visa application, did he provide further false and misleading information about that employment to the Department. The applicant said when he received the letter from the Department regarding his Subclass 186 visa application he was in shock and did not know what to do. He (and others who had received the same letter) decided to consult with the agent and he informed them he would take care of it and asked for more money to assist them. The agent gave them documents to provide to the Department. The Tribunal raised with the applicant its concern that he was willing to continue to provide documents which contained false or misleading information to the Department. The applicant said at the time he was conflicted as another person had begged him not to divulge the truth as it would jeopardise their cases. He said he did not consult a lawyer until the review process, during which he decided to provide a truthful account of what had transpired.
The Tribunal asked the applicant about the agreement he had with the agent for the provision of migration services and whether he had made any efforts to check or verify the information that was being provided on his behalf by the agent. The applicant said they did not have a formal written agreement. He said they discussed the process and he agreed to pay fees to the agent, which totalled [Amount]. He said he did not check the information lodged with the visa application by the agent and had relied on the agent to lodge the application on his behalf.
Having regard to the evidence before it, including the applicant’s admission that he had never worked as a [Job task 1] with [Employer] in [Country] as claimed, the Tribunal finds that information which was false or misleading had been given to the Minister in relation to the Subclass 457 visa, which had been held by the applicant in the 12 months before the visa application (which is the subject of this review) was made.
The Tribunal also finds on the evidence before it that the information regarding the applicant’s claimed employment as a [Job task 1] in [Country] was false or misleading at the time it was given and that it was relevant to the requirement for the Subclass 457 visa about whether the applicant had suitable skills and qualifications to perform the occupation and is therefore false or misleading ‘in material particular’ as fined in PIC 4020(5).
The Tribunal has had regard to the applicant’s claim that he was not aware the agent had provided fraudulent information about him working as a [Job task 1] in [Country]. While the Tribunal is prepared to accept that (at the time the Subclass 457 visa was made) the applicant may not have been aware of the employment reference, the Tribunal notes it is not necessary to establish that the applicant was aware that false or misleading information had been provided for PIC 4020 to be engaged.[1] In this case, there was a verbal agreement between the applicant and the agent for the provision of services associated with securing a temporary work visa for which the applicant paid a large sum of money. Furthermore, the applicant did not check or verify the information provided in the application by the agent on his behalf. On his own evidence, the applicant paid the agent’s fees and relied on the agent to lodge the application without checking or verifying what had been provided in the application. In the circumstances, the Tribunal considers that the applicant had caused the false or misleading information to be given in relation to the Subclass 457 visa application.
[1] Trivedi v MIBP (2014) 220 FCR 169 at [43]–[44]. Cited with approval in Singh v MIBP [2018] FCAFC 52 at [144].
Given the above, the Tribunal finds that there is evidence that the applicant has given, or caused to be give, to the Minister and/or an officer information that is false or misleading in a material particular in relation to the Subclass 457 visa application, which he held in the 12 months before the application was made. 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 reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

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.
For the following reasons, the Tribunal is satisfied that the requirements should be waived.
At the hearing the applicant gave evidence that it was in Australia’s interest for him to remain employed as a [Job task 2] with his nominating employer ([Company 1]), which was one of the larges [Work sector] producers in Australia. The applicant said he has been working as a [Job task 2] with [Company 1] for the last five years, including throughout the period of the pandemic and that he has been working one hour overtime each day due to the chronic shortage of skilled [Job task 2]s. The applicant’s spouse ([Ms A]) also works for [Company 1]. She gave evidence that she works in the [Job task 3] section, but also undertakes a variety of tasks at the plant due to the shortage of workers in different sections. The Tribunal has before it copies of certificates issued to the applicant and his spouse indicating that they were classified as essential workers during the lockdown period of the COVID-19 pandemic.
The Tribunal also has before numerous letters of support from the applicant’s co-workers at [Country 1] attesting to the applicant’s high level of competence and skill as a [Job task 2].
The Tribunal also received a letter of support dated 27 June 2022 from [Mr D], the General Manager of [Human resources], [Company 1]. It states that the Australia's [Work sector] industry is one of the most important industries in Australia. The industry has made a great contribution to and played an important role in the growth of Australia's economy in the past years and is forecast to increase in the years to come. He stated that [Company 1] is one of the largest [Work sector companies] and providers of [Product] supply chain solutions. They are an essential business, which integrates supply chain operations from [Supplier 1]s to distribution and has made a great contribution to the development of Australia's economy. He stated that skilled [Work sector] workers, especially in regional areas, have always been in shortage and that COVID-19 had amplified this problem.
[Mr D] stated that the [Work sector] industry is currently experiencing a shortage of [Number 1] [Work sector] workers at any given time. At [Company 1], their [City] site alone (where the applicant works) there are nearly [Number 2] vacant positions in the [workplace] due to a country-wide labour shortage, which means the [workplace] is [producing] [Number 3] fewer [units] a week, cutting production by [Number 4]%. It was stated that reduction in [Work sector operations] does not merely affect the running of the [workplace] but the entire [Product] supply chain. It was submitted that when [Work sector 1 operation] is affected, the entire supply chain will be affected; both upstream such as the [Supplier 2]s and [Supplier 1]s (as [raw materials] need to be [maintained], which increases costs), and downstream such as the distributors (contracts cannot be fulfilled), logistics and consumers (who will inevitably have to pay a much higher price due to supply shortages).
[Mr D] stated that in [Work sector operations] there are always some key or crucial positions, where the [Job task 2] are not easy to handle. He said only highly skilled and experienced [Work sector] workers such as the applicant are able perform such tasks. He stated that at [Company 1], they have a training program which recruits and trains skilled workers, but it was not easy to attract trainees in regional areas and that it would take many years of training for one to be as skilful as the applicant. He said the applicant has worked in [Company 1] for nearly five years, and that during this period he has demonstrated that he is fully committed to his work and has become an integral part of the team. It was submitted that losing a worker such as the applicant would have a negative and material impact on their company, their people, and their stakeholders and would be a loss to Australia at a time when they need people such as the applicant the most.
The Tribunal also had the opportunity to take evidence from [Mr E], the Human Resources Manager at [Company 1]’s [City] plant. He gave evidence that the applicant has been employed by [Company 1] since November 2017. He said the applicant is a Level 2 [Job task 2] and is one of their most skilled workers. He reiterated the evidence given by [Mr D] regarding the difficulty of recruiting and retaining skilled workers in the [Work sector] industry. He said it would take between 12 months and three years to upskill someone to the skill level of the applicant, and that is assuming the person is a good worker. [Mr E] stated that losing a highly skilled [Job task 2] at this time would have a negative impact on the business, especially in [City] where employment was well below the national average. He said the facility had scaled back production due to the skills shortage and if they lose one of their most skilled [Job task 2] it was likely to further affect their production levels. He said as the second largest [Specific product] producer in Australia, the loss of a skilled [Job task 2] had the potential to affect the supply chain in Australia.
The Tribunal has also had regard to other supporting documents regarding skills shortages in the [Work sector] industry and the challenges faced by employers, particularly in regional Australia, to recruit and retain skilled workers.
In considering whether the matters raised by the applicant and [Company 1] constitute compelling circumstances that affect the interest of Australia, the Tribunal has also had regard to the types of circumstances provided in departmental policy. While the Tribunal is not bound by policy, nor would confine itself to the matters raised in the policy, it nevertheless considers it a helpful guide.
The policy provides that there may be compelling circumstances affecting the interests of Australia if Australia's trade or business opportunities would be adversely affected were the person not granted the visa, it notes that the mere gaining employer sponsorship is not considered sufficient grounds for a waiver. It also provides that there may be compelling circumstances if Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural, or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
In considering the relevant evidence before it, the Tribunal is satisfied that the applicant has been employed by [Company 1] for almost five years and is one of their highly skilled [Job task 2]. The Tribunal accepts that [Company 1], as Australia’s second largest producer of [Specific] products in Australia, has been significantly impacted by chronic skills shortages which has led to decrease in production. The Tribunal accepts that the loss of a highly skilled worker, such as the applicant, would further (negatively) impact their production capacity, which in turn would adversely affect Australia’s trade and business activities.
The evidence before the Tribunal, from the applicant’s managers, supervisors and colleagues, indicates that he is a hardworking and highly skilled [Job task 2] whose skills are in high demand in Australia. The Tribunal accepts that it could take up to three years to upskill a worker to the skill level of the applicant, which currently [Company 1] has little capacity to undertake due to skills and labour shortages, which is particularly acute in regional Australia. The Tribunal is satisfied that the applicant’s skills are, at this time, highly sought after in Australia and that it would be of significant benefit to [Company 1] (as one of the largest [Specific product] producers in Australia) to maintain his employment, which in turn would have a significant benefit to Australia’s business and trade activities.
For the above reasons, the Tribunal is satisfied that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa. Therefore, the requirements of PIC 4020(1) should be waived.
The Tribunal notes that it also received numerous letters of support from friends of the applicants, attesting to the family’s integration and contribution to their local community in [City]. It also received letters of support from leaders of church where the applicants currently attend, and letters of support from the children’s teachers, tutor and school friends. The letters indicate that the applicants are much valued members community. They also set out the difficulties the applicant’s children would experience if they had to return to [Country], particularly the youngest son who does not read or write in [Language].
A brief consideration of these submissions suggest that the circumstances mentioned, which may amount to compelling or compassionate circumstances, appear to affect the interest of the applicant and his family, who are not Australian citizens or permanent residents or eligible New Zealand Citizens. In any case, the Tribunal did not consider it necessary to engage in a detailed assessment of these circumstances as the Tribunal has already found that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity.
The applicant has provided several identity documents with his application, and there is no evidence before the Tribunal to suggest that there is any issue with his identity. Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no evidence before the Tribunal that the applicant or any member of the family unit have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A). Therefore, PIC 4020(2B) does not apply.
Conclusion
On the basis of the above, the Tribunal finds that the applicant satisfies PIC 4020 for the purposes of cl 186.213(1).
decision
The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations.
R. Skaros
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.
…

[2022] AATA 2911

29 July 2022

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

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