2107453 (Migration)

2107453 (Migration) [2022] AATA 1934 (2 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2107453
MEMBER:Namoi Dougall
DATE:02 June 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:
·Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations.

Statement made on 02 June 2022 at 1:34pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – bogus document – working certificate – false or misleading information – work history and work certification – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359A, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.213, Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 May 2021 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 23 September 2020. The delegate refused to grant the visa on the basis that 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 was not satisfied that the applicant met the requirements of public interest criterion (PIC) 4020 of Schedule 4 to the Regulations. The delegate found that the applicant had given information that was false and misleading in a material particular in regard to his work history in relation to a visa the applicant held 12 months before the application was made.
On 25 January 2022, the Tribunal wrote to the applicant, pursuant to s 359A of the Act, inviting the applicant to comment on adverse information. The adverse information was that the applicant’s nominator, [Company 1], had written to the Department withdrawing its nomination application.
On 7 February 2022, the applicant responded to the Tribunal’s letter of 25 January 2022 by providing a letter from [Company 1] dated 6 February 2022. [Company 1] stated in the letter that it valued the contribution of the applicant and acknowledges the skills and experience he brings to his role, and supports his Subclass 186 visa application. [Company 1] further stated that it inadvertently withdrew its nomination application and is now reapplying and/or reinstating the nomination.
The applicant appeared before the Tribunal on 31 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the [specified] and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 186.213(1) 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.
On 5 September 2016, the applicant applied for a Subclass 457 visa, which was granted on 6 October 2016. The applicant still held this visa when he applied for the Subclass 186 visa the subject of this review. Provided with the Subclass 457 visa application was a working certificate dated 18 August 2016, which stated that the applicant worked as a [Occupation 1] from 3 November 2012 until the date of the working certificate with [Company 2].
Provided with the Subclass 186 visa application was a resume (the resume), which stated that from 17 July 2017 to the date of the resume the applicant worked as a [Occupation 1] for [Company 1]. Also provided was a reference from [Company 1] dated 25 August 2020, which stated that the applicant has worked full time for the company, 40 hours a week. The reference also stated that he is a skilled worker working in [specified area].
The resume also stated that from 3 November 2012 to September 2016 the applicant worked at [Company 2] as a [Occupation 1].
The Department, while processing the Subclass 186 visa application, received a community allegation that offshore recruitment agencies were producing false work experience certificates from [Country 1] for [Industry 1] workers. An officer of the Department searched a telephone directory and open-source information to obtain the telephone numbers of [Company 2] and telephoned unsuccessfully each of the telephone numbers in the local directory for [Company 2]. A telephone call to the office number provided in the working certificate was made but the officer was unable to reach the company.
The officer then made telephone calls to the parent company, [Company 3], but the officer was unsuccessful in reaching an HR Department or anyone who was able to provide contact details for [Company 2]. The officer then telephoned the contact details of [Mr A] who signed the working certificate on the mobile number included in the working certificate. [Mr A] could not recall signing the working certificate.
On 13 April 2021, the Department sent the applicant a natural justice letter (the natural justice letter) which set out the information referred to in the above paragraphs and stated that the referees casted doubt on the authenticity of the reference in the working certificate as [Mr A] could not confirm if he provided the reference and was not able to provide information on the employment of the applicant in the buisness. The Department stated that the information obtained by the Department raised concerns about the nature of the relationship between the business “[Company 2]” and the applicant. The natural justice letter stated that a preliminary view had been reached that the working certificate contain information that was false and misleading in relation to the applicant’s skills. Further, due to [Mr A] not being able to provide information as to the applicant’s employment with [Company 2], it is reasonable to suspect that the working certificate is a bogus document.
The Department, in the natural justice letter, invited the applicant to comment on the above information. The natural justice letter also referred to PIC 4020 still being satisfied in circumstances where there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interest of an Australian citizen, Australian permanent residents, or an eligible New Zealand citizen that justify the grant of the Subclass 186 visa.
On 11 May 2021, the applicant responded to the natural justice letter with a response and supporting documentation. In the response the applicant stated that he worked for [Company 2] during the period stated but that the company was now bankrupt and that is why the Departmental Officer could not contact the company. The applicant stated that he was confused by the reference to “[Company 2]”. Further, he stated that [Mr A] has retired and as he was only an ordinary staff member amongst hundreds, [Mr A] could not confirm that the applicant worked for [Company 2] when the Departmental office contacted him.
Provided with the response to the Department’s natural justice letter was a statement of [Mr A] dated 22 April 2022 and translation. [Mr A] stated that he was a plant manager for [Company 2] for many years and he is now retired. Further, as far as he is aware the company closed at the beginning of the year. [Mr A] also stated that he recalls receiving a telephone call from the Australian consulate in [City 1] to confirm the applicant’s employment history with [Company 2] and whether he issued him with a work certificate. During his tenure, [Company 2] had between 200 to 300 employees, so it was impossible for him to remember the information about each employee. He also stated that he issued many certificates for work reasons and as it had been many years and he is getting older, he could not confirm the applicant’s working certificate during the telephone call. [Mr A] then stated that he now recalls and has looked through work notes and can confirm that the applicant was an employee, and he can certify again that the applicant worked for [Company 2] from November 2012 to September 2016 as a [Occupation 1].
Also provided with the response to the Department’s natural justice letter was a Notice from [Court 1] dated [in] February 2021 and translation in relation to the merger and bankruptcy reorganisation of [Company 4] and 44 other companies, including the appointment of joint administrators (the bankruptcy reorganisation notice). Included in the list of 44 companies is [Company 2].
On 12 May 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide a submission that there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interest of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen that justify the grant of the Subclass 482 visa.
On 23 May 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act and enclosed a copy of the s 375A certificate the Department had issued in relation to certain information on the Department’s file. The information related to how the investigation was carried out and the information obtained. The applicant was invited to comment at hearing or respond in writing on the validity of the certificate.
On 27 May 2022, the Tribunal wrote to the applicant pursuant to s 359(A) of the Act, inviting the applicant to comment at the hearing or to respond on adverse information. The adverse information was that community allegations received by the Department indicated that offshore recruitment agencies were producing false work experience certificates from [Country 1] for [Industry 1] workers.
On 26 May 2022, the applicant responded to the Tribunal’s letter of 12 May 2022. The applicant provided a submission on whether the applicant provided false and misleading material (the submission) and a statement on compelling circumstances, together with supporting information, which is referred to below.
The submission referred to the applicant lodging his Subclass 457 visa application on 5 September 2016 and ceasing work for [Company 2] in September 2016, and stated that the Department does not provide a date as to when it conducted its investigative telephone calls. The submission stated that the investigations must have been made at least 4 to 5 years after the applicant left the employ of [Company 2] and, in that time, circumstances had changed, including [Mr A]’s retirement.
The submission stated that [Company 2] was a subsidiary of [Company 3], a public company and one of [Country 1]’s largest [companies in Industry 1], with over 170 subsidiary companies at its peak. The submission referred to the bankruptcy reorganisation notice and stated that this is consistent with [Mr A]’s statement that [Company 2] is closed. The submission also referred to an unrelated proceedings, “Labor dispute between [Company 5] and [Company 2]”, the transcript of which is published on the official [Country 1 judicial website]. Provided with the submission was a translated section of the transcript, which indicated that the representative of [Company 2] stated that the company had ceased operations for one year and that premises are already leased to external parties and no records can be found.
The submission in relation to the telephone call by the Departmental officer and [Mr A]’s statement noted that [Mr A] retired in 2019 and the call would have been more than 4 and a half years since the applicant left. In addition, it noted [Mr A]’s age, failing memory and the gap between him signing the work certificate and the telephone enquiry, and that [Company 2] had 200 to 300 workers in an industry with a high turnover rate due to the physically demanding work and because the income was below the taxable income threshold. The submission also stated that [Mr A] had signed many work references and was being honest when he stated he could not recall signing the applicant’s working certificate. The submission noted that [Mr A] did not say he did not sign the working certificate just that he could not recall signing it, in circumstances where he was not provided with a copy of the working certificate.
In relation to the delegate’s concerns that [Mr A] was unable to provide any information as to the employment of the applicant in the business, it was submitted that there is no record on the Department’s file of [Mr A] being asked for any such information.
The submission also referred to circumstantial information supporting the applicant’s claim that he worked for [Company 2] as a [Occupation 1], in light of the company having ceased operations and that no records can be found. Firstly, the submission referred to the recognition by an assessor and [Company 1] of the applicant’s skills. The Tribunal has referred above to the [Company 1] reference. Also on the Department’s file is a Record of Complete Assessment dated 22 September 2020 for the applicant’s on-the-job demonstration with assessor observation for a [qualification in skill area]. In a letter dated 22 September 2020 the assessor stated that the applicant was observed in person performing various tasks that are listed in the letter and that the letter can be used as evidence towards accreditation through recognised Prior Learning.
The submission referred to the applicant working in [City 2] but that his hometown is 550 kms away in [County 1], [Province 1]. Provided to the Tribunal was a train ticket dated December 2015 when the applicant returned to his hometown to be with his wife and family. The ticket has the applicant’s name, ID number and that he departed [City 2] and arrived at [City 3] on 31 December 2015. Also provided were online orders for [specified protective equipment and clothing that] he was required to wear.
The submission also stated that the applicant’s inability to provide payslips, tax and superannuation documentation to prove his employment is because, under [Country 1] employment law, the payment of wages by cash is legal and the applicant always earnt less than the monthly income required to pay income tax. Further, as he was paid cash there is no bank account information that can be provided, and it also allowed employers to avoid paying social security. In relation to social security, it was also submitted that rural and regional areas only recently became subject to the social security system. Supporting information was provided with the submission.
At the hearing the applicant stated that he started his job in November 2012 with [Company 2], and he worked mainly as a [Occupation 1]. The applicant had finished an entrance test including a physical examination, and he was trained on how to use [a specified tool] and other skills. At the start he had to pass the fitness test and there was no requirement for skills. After working for a while, he was trained. He started in packing and moving and then he was trained in [specified skill] and when he got good at this, he was then trained on [more advanced skills]. He received training on [occupational skills]. Also, once he began to [undertake Occupation 1 work], his salary increased to [currency]3,000 per month.
At the hearing the applicant stated he worked for [Company 2] until September 2016 and his salary when he left the company was [currency]3,100 or [currency]3,200 per month. The supervisor of the working group was [Mr B], who reported to the factory general manager, [Mr A], who provided him with the reference.
At the hearing the applicant stated that he heard that there were overseas jobs in a number of countries, so he started to study English. He continued to work, waiting for an opportunity. There were advertisements and through word of mouth he heard that there were jobs overseas and you could earn more money. The Tribunal asked how he found out about the job that brought him to Australia, and the applicant stated he received online messages and he contacted the phone number on the app and the contact person stated that he needed to go for a test in a factory. Later on, the boss of the factory and a foreman assessed him for the test. After he passed the test, he signed a contract and finally he came to Australia. The Tribunal asked if he had to work in the factory where he was tested and the applicant stated that the factory where he was tested was different from where he worked and he remained working for [Company 2]. The test was to assess his [occupational] skills. The contract he signed was a labour agreement with the overseas company, [Company 6]. When he came to Australia he worked with that company, as it had sponsored him for his Subclass 457 visa.

At the hearing the applicant stated that about 200 to 300 people worked at the factory in [Country 1], and when he left the company [Mr A] was still working for [Company 2].
At the hearing the applicant’s representative stated that the there were no concerns about the validity of the certificate under s 375A of the Act. The applicant stated in relation to the adverse information set out in the Tribunal’s letter of 27 May 2022 that he had asked his representative to provide evidence on his work experience and he cannot comment on the information provided. The applicant’s representative stated that the evidence is vague, and the applicant has already answered the allegation by providing information to establish that he did work at [Company 2]. The applicant stated that his current job is very hard, and he worked throughout the COVID-19 Pandemic. He has already been given a letter from [Company 1] stating he is an essential worker who works in a factory providing [goods] to the Australian community, who rely on them. As a skilled employee he trains new staff about how to use and [maintain a specified tool] and [do the work]. The [goods] they work on is 20 to 30 kilos and very heavy and if the new staff do not know how to use a [specified tool], they will injure themselves. In his spare time, he participates in charity work. He is separated from his wife due to COVID-19 and she is studying [specified subject] to help to look after the elderly, and they hope she can obtain aged care work in [Australian City 4]. He hopes to be able to continue to work as a skilled worker at [Company 1].
Provided to the Tribunal was a statement dated 22 May 2022 from [Mr C], General Manager, [Company 1]. In the statement [Mr C] stated that the Australian [Industry 1] is important and had made a great contribution to the growth of Australia’s economy. [Company 1] is one of the largest [companies in Industry 1]. [Company 1] is an essential business, which integrates the supply chain from [raw material] to distribution and made a great contribution to the Australian economy.
[Mr C], in his statement, further stated that there is a shortage of skilled [Occupation 1]s, especially in rural areas, and this has been exacerbated by the COVID-19 Pandemic. There is a shortage of [number] skilled [Occupation 1]s nationally and at the [City 4] site, where the applicant works, there are 60 vacant positions. This leads to 750 [products] being processed per week and cuts production by 15%, which in turn affects the whole supply chain. [Supplier’s] costs are higher as [products] have to be held longer, and downstream, distributors contracts cannot be fulfilled, which leads to higher costs for logistics and the consumer.
In his statement, [Mr C] referred to the applicant being able to perform the more difficult [work] and that even though [Company 1] has training programs, it is not easy to recruit trainees to a regional area. [Mr C] also stated that the applicant has worked for [Company 1] for 5 years and has become an integral part of the team.
The Subclass 457 visa was granted on 6 October 2016, and at the time the applicant applied for the Subclass 186 visa the subject of this review, the applicant still held the Subclass 457 visa. Therefore, the Tribunal is satisfied that the information in question, that is the work history and work certification, is information in relation to a visa held in the 12 months before the visa application was made.
The Tribunal will first consider whether there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Department a bogus document, which is defined in s 5(1) of the Act and is a document that the Tribunal reasonably suspects:
·purports to have been, but was not, issued in respect of the person; or
·is counterfeit or has been altered by a person who does not have authority to do so; or
·was obtained because of a false or misleading statement, whether or not made knowingly.
The Department, when investigating the applicant’s work history, contacted [Mr A], the plant general manager at [Company 2] where the applicant worked. There is nothing on the Department’s file that states the date he was contacted but it was at least over 5 years since the applicant left the factory based on the date of the natural justice letter of 13 April 2021. As there is no evidence contradicting the submission, the Tribunal accepts that at the time, [Mr A] had retired from his position with [Company 2]. The Tribunal also accepts that in his position as plant manager, [Mr A] would have completed many work references or working certificates. Further, [Mr A] was not provided with a copy of the working certificate to refresh his memory and the statement that he cannot recall whether he signed the working certificate was, in the circumstances, the most appropriate response to the Departmental officer’s enquiries.
In addition, the Department was provided, in response to the natural justice letter, a statement from [Mr A] in which he stated that he now recalls and has looked through work notes and can confirm that the applicant was an employee, and he can certify again that the applicant worked for [Company 2] from November 2012 to September 2016 as a [Occupation 1].
The Tribunal notes the Department’s concern, as set out in the delegate’s decision, that [Mr A] was not able to provide any information on the employment of [the applicant] at [Company 2], however, there is nothing on the Departmental file that indicates that [Mr A] was asked to provide any other information about the applicant’s employment at [Company 2] beyond confirming the working certificate. Further, the Tribunal has evidence before it that the parent company of [Company 2], together with 44 subsidiaries, including [Company 2], are closed and in administration. In light of [Company 2] being in administration, and that [Mr A] has retired, the Tribunal is satisfied that [Mr A] would not have further documents, beyond his notes, confirming the applicant’s employment or the employment of other former employees, if he had been requested to provide such documents.
On the basis of the above, the Tribunal is not satisfied that there is evidence before it that the applicant has given, or caused to be given, to the Department a bogus document, which is defined in s 5(1) of the Act, as the evidence relied on by the Department and which is before the Tribunal does not have sufficient probative value to establish the working certificate is a bogus document.
It was submitted that the factory employed 200 to 300 employees and that, due to the nature of the work, there was a high turnover of staff. This was confirmed by [Mr A] in his statement in response to the natural justice letter and by the applicant at hearing. Although plausible, there is nothing further that confirms or contradicts this information and the Tribunal does not rely on this information.
The Tribunal will now consider if the information ‘is false or misleading in a material particular’ as defined in PIC 4020(5), which requires that the information is:
·false or misleading at the time it is given; and
·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.
The criteria that the information is relevant to is reg 457.223(2)(d), which requires an applicant to demonstrate that he or she has skills and experience that are suitable to perform the occupation in a manner specified by the Minister. It is reasonable that the Department would require a work history and references that were not false or misleading to assess whether such a skill assessment was needed. Therefore, the Tribunal is satisfied that the information in question, that is the work history and work certification, is information relevant to reg 457.223(2)(d). However, for the same reasons as the Tribunal was not satisfied that the applicant has given, or caused to be given, to the Department a bogus document, which is defined in s 5(1) of the Act, the Tribunal is not satisfied that the applicant has given, or caused to be given, to the Department information that is false and misleading in a material particular that is in relation to his work history or the working certificate.
Therefore, the applicant meets PIC 4020(1).
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity.
There is no evidence before the Tribunal to suggest that there is any issue with applicant’s identity. Both the Department and the Tribunal have been provided with a copy of the detail pages of the applicant’s passport.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
55.PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 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(2AA).
56.The Tribunal has no information before it to suggest that the applicant has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1). Therefore, PIC 4020(2) is met.
57.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).
58.There is no evidence before the Tribunal to show that the applicant, or any member of his family, have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).
59.Therefore, the applicant meets PIC 4020(2B).
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 186.213(1).
DECISION
The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:
·Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations.
Namoi Dougall
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 1934

2 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice