Ahmadi (Migration)

[2023] AATA 4144

Ahmadi (Migration) [2023] AATA 4144 (4 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Azizullah Ahmadi

VISA APPLICANT:  Ms Shafiqa Ahmadi

REPRESENTATIVE:  Ms Gabriel Mackenzie

CASE NUMBER:  2316487

HOME AFFAIRS REFERENCE(S):          2018035552

MEMBER:SM Michael Cooke

DATE:4 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·Public Interest Criterion 4020 for the purposes of cl117.223 of Schedule 2 to the Regulations

Statement made on 04 December 2023 at 3:42pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – identity – false or misleading information or bogus document – date of birth – no birth certificate – national ID issued with self-declared date – applicant’s and sibling’s dates of birth changed between sponsor’s own visa application and applicant and siblings’ application – sponsor’s estimation of years and application made in third country – school records support claimed age if applicant started at standard age – school years and calendar formats – born between two siblings whose ages are sufficiently supported – mother’s age at birth of each child – all other information consistent – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5A(1), 65
Migration Regulations 1958 (Cth), Schedule 2, cls 117.211, 117.223, 117.226, Schedule 4, criterion 4020(1), (2A), (5)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 September 2023 to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 December 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 117.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not meet PIC4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations. In particular, the delegate was not satisfied that she met the identity requirements in PIC4020(2A).

3. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 117.223 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).

6. 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?

7. 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.

8. 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.

9. 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.

10. The delegate in her decision (tendered to the Tribunal) made the following finding after assessing the available documentation:

    The applicant declared spending twelve years in education in Afghanistan from 2009 to 2020, which may have provided an opportunity to submit additional records to substantiate their age and birth year as they progressed through the academic years in schooling. As no further educational documents were submitted, I cannot make the same conclusions as the migration agent, that the applicant commenced schooling at the age of seven. There is no further evidence of their school enrolments, reports, examination results submitted in order to make this determination.

    I am not satisfied with the applicant’s claimed identity. I base this decision on the following reasons:

    ·All three Orphan Relative visa applicants’ date of birth lowered in age whilst no change was made to their older sibling’s age, coincides with new identity documentation obtained/translated immediately prior to this visa lodgement.

    ·Consideration of their mother’s age at the time of each applicant’s declared date of birth.

    ·The applicant advised they had “self-declared their age” when applying for their taskera for the purpose of lodging this visa application.

    ·Shafiqa’s original school record appears to match Sima’s original school record.

    ·A lack of additional life story documentation made available for this assessment i.e. further school records.

    I have concluded that the applicant has obtained identity documentation, specifically their taskera and passport, based on false or misleading declarations in a material particular relevant to clause 117.211 requiring the applicant to be under 18 years of age at time of lodgement.

11. Applying the Departmental policy of “Three Pillars of Identity” (documents, life story and biometrics) to establish identity, the delegate was not satisfied the applicant had satisfied the Minister as to her identity and, therefore, concluded that the applicant failed to meet Public Interest Criteria (PIC) 4020(2A) of cl 117.223 of the Migration Regulations

12. The Tribunal has had the benefit of additional information following the delegate’s decision. The Tribunal is not satisfied on the totality of the evidence (see below) that the applicant has provided ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5).

13. Therefore, the applicant meets PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

14. 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).

15. However, the applicant was under 18 at the time the application for the refused visa was made, such that PIC 4020(2) does not apply to her.

16. Therefore, PIC 4020(2) does not apply.

    Has the applicant satisfied the identity requirements?

17. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.

18. The delegate found in her decision that:

    The date of birth for the sponsor and older siblings do not change between the visa applications and there are no records of the older siblings applying for an Australian visa application. Only the three Orphan Relative visa applicants’ dates of birth have changed and lowered in age between the two visa applications.

    Based on Shafiqa’s date of birth, 1 January 2000, declared in 2013, Shafiqa would have been 18 years of age (not 15) as claimed at time of lodgement. Their mother would have been 44 years of age at birth and not 47 years of age.

    It appears that the ages of all three Orphan Relative visa applicants were reduced to facilitate Malika and Shafiqa’s eligibility to meet the under 18 years of age requirement at time of lodgement. As Shafiqa’s age reduced to 3 March 2003, Sima’s date of birth, 1 January 2003, also reduced providing a suitable age gap between Sima and Shafiqa.

    The applicant was sent a Natural Justice letter on 25 July 2023 and was provided with 28 days to comment on the suspected inconsistent/inaccurate/inadequate information supplied to the Department relevant to their identity.

    On 3 August 2023, the following response was provided to the Department. The migration agent submitted an unsigned and undated Statutory Declaration on behalf of the sponsor that includes the following statements in relation to the applicant’s identity documents:

    In 2018, I told my sisters that I could sponsor them for an Orphan Relative visa. In preparation for applying for their visa, I asked each of my sisters whether they had a taskera.

    Shafiqa told me she did not have a taskera. I told Shafiqa to apply for a taskera which she did. Her taskera was issued on 9 August 2018.

    My sisters applied and were issued passports on the basis of their taskeras. Their passports recorded their dates of birth as:

    Malika – 22/06/2001

    Shafiqa – 03/03/2003

    Sima – 23/05/2005

    On 28 December 2018, I lodged my sisters Orphan Relative sc117 visas. Based on their documentation at the time of lodgement, my sisters were aged:

    Malika – 17 years, 6months, 6 days

    Shafiqa – 15 years, 9 months, 25 days

    Sima – 13 years, 7 months, 5 days

    In addition to providing their taskeras, I also provided school reports for each of my sisters which corroborate their ages as recorded in their taskeras.

19. The delegate informs that:

    There were no additional documents submitted in support of the applicants’ claimed identity in response to the Natural Justice letter sent 25 July 2023.

20. The delegate related the following summary:

    According to the applicant’s claims, the taskera official asked the adult relative as to the applicant’s year of birth. The relative supplied applicant’s year of birth which was recorded on their taskera document. The sponsor advised that the applicant does not have a birth certificate and, therefore, the only identity document they have is their taskera, which is identity produced on ‘self-declared’ information and forms their primary identification. We are aware of this specific practice, which is the purpose of requesting additional identity/life story documentation in order corroborate and make a balanced and informed identity assessment.

    The applicant has not submitted any further documents other than a taskera and Passport, issued prior to lodgement and an undated school document which does not record their date of birth or the academic year. I am also not satisfied that Shafiqa’s school record is genuine as the original copy submitted in her application matches the original submitted in Sima’s visa application. The migration agent implies, if the applicant commenced school aged seven (which is common in Afghanistan), then she would have commenced school in 2010. The school report therefore corroborates the applicant’s age as per her taskera.

    The applicant declared spending twelve years in education in Afghanistan from 2009 to 2020, which may have provided an opportunity to submit additional records to substantiate their age and birth year as they progressed through the academic years in schooling. As no further educational documents were submitted, I cannot make the same conclusions as the migration agent, that the applicant commenced schooling at the age of seven. There is no further evidence of their school enrolments, reports, examination results submitted in order to make this determination.

21. The applicant’s representative has presented the following additional information in rebuttal of the delegate’s observations and findings:

    All three visa applicants’ date of birth lowered in age whilst no change was made to their older sibling’s age, coincides with new identity documentation obtained/translated immediately prior to this visa lodgement.

    The above finding is addressed in two parts. Firstly, the delegate’s inference that, because the visa applicants and their parents’ birth years changed between visa applications, but the two older siblings’ birth years remained unchanged, (therefore) the visa applicants’ ages had been lowered to meet the age requirement for the visa. Secondly, that the lowered age coincided with new identity documents being obtained and/or translated immediately prior to the visa lodgement.

    To reach this finding, the delegate compares information provided by the sponsor in his application for a Refugee sc 200 visa lodged on 9 November 2013 and information provided by the visa applicants in their Orphan Relative sc117 visas lodged on 28 December 2018.

    The Refugee sc 200 visa application is referred to herein as the 2013 application and the Orphan Relative sc117 visas is referred to herein as the 2018 application.

    With respect to the first part, we submit that the inference drawn by the delegate - that the birth dates for the visa applicants in the sponsor’s 2013 application were correct because the other two non-migrating siblings’ birth years remained unchanged across the two visa applications - is flawed.

    The delegate placed little weight on the sponsor’s explanation in his (undated and unsigned) Statutory Declaration that, when asked for his family members dates of birth in his interview with UNHCR and the Australian immigration authorities in Indonesia in 2013, he gave his best estimate of their birth years in the absence of documentation. In placing little weight on the sponsor’s explanation, it appears that the delegate took the view that the sponsor knew his siblings’ correct birth years and gave correct information, not estimates at his interview in 2013. The delegate’s finding that the visa applicants had lowered their ages to obtain their taskeras and subsequently, passports, by extrapolation, implies the delegate accepted the birth years given in 2013 as correct.

    While accepting the sponsor’s 2013 estimates for the visa applicants’ birth years as correct, the delegate simultaneously accepted that the estimates for his (the sponsor’s) parents’ birth years were incorrect. The father’s death documentation submitted in support of the 2018 application records him as being 71 years old at time of death on 8 January 2017.

    Relying upon the father’s self-declaration to the medical profession that his age was 71 instead of his 18 year old son’s estimate in 2013 in Indonesia, his birth year was 1946, not 1953, a difference of 7 years.

    The mother’s taskera, issued on 26 February 2017, gives her age in 2016/2017 (1395) as her Death Certificate gives her age as 60 in 2016. Relying upon the mother’s taskera and Death Certificate submitted in support of the 2018 application instead of her 18 year old son’s estimate in the 2013 application, the mother’s birth year is 1956, not 1958, (which is) a difference of 2 years.

    No official identity documentation for the older siblings (Rahima and Nowroz) was submitted in either the 2013 or 2018 applications and we are instructed that Rahima does not have a taskera at all and a taskera for Nowroz, who has been missing for 14 years, could not be found. If official identity documentation had been available for these older siblings, their taskeras may well have revealed a different birth year to that given by the sponsor in his 2013 application. The absence of such documentation cannot ground a finding that the birth years recorded in the 2013 application are correct.

    Thus, despite official documentation, submitted in the 2018 application, for 5 of his 8 family members differing from the sponsor’s 2013 estimate, the delegate refused to accept that the sponsor’s estimates of the visa applicants’ birth years may have been incorrect and instead, selectively found that the official documentation for the visa applicants was false while the official documentation for the parents was accepted.

    In summary, the delegate based her finding that the visa applicants ages were lowered on the fact that there was no change in the birth years for the two older siblings between 2013 and 2018 applications (which) is an opinion based on insufficient evidence for proof. It is no more than conjecture and, we submit, no weight can be reliably placed on it.

    A lack of additional life story documentation made available for this assessment i.e. further school records.

    School records for the visa applicant Malika Ahmadi were submitted at the time of lodgement for the years 2015 and 2016. The school reports showed the visa applicant in Year 4 in 2015 and Year 5 in 2016.

22. In the case of the visa applicant (the subject of this review) the delegate elaborated the following information:

    On the 6 February 2023 the applicant’s migration agent advised the following:

    …With respect to the specific dates of birth given on the applicants’ passports, I am instructed that these dates were allocated by the taskera office official on the day that the applicants’ applied for their taskeras. The sponsor instructs that an adult relative attended the government office with his sisters to apply for their taskeras. The official questioned the relative as to the applicants’ year of birth. The adult relative supplied the year of birth and the taskera official completed the form with the date of application for the taskera and the year of birth given by the attending adult relative.

    The sponsor confirms that no birth certificates were issued, and the only evidence of age is the taskera, passport and school documentation…

    The applicant submitted Form 80 Personal particulars for assessment including character assessment. At question 20, Part G – Education, the applicant advised they had attended school from Year 1 to 12 between 2009 and 2020 at the Houtqul Angori High School for Girls in Afghanistan. However, the applicant did not submit further educational records which may have supported the applicant’s identity claims of being born in 2003. The only school record was submitted at lodgement. This document did not record the applicant’s date of birth, academic year, or a date of issue and appeared to match the original school record submitted for sibling Sima Ahmadi.

    No additional documents were submitted in response to the request for Additional documents to support your identity and claimed relationships sent 9 January 2023

1. The visa applicant’s representative has tendered contemporary documentation from the school to substantiate the applicant’s age. She has pointed out some anomalies in the delegate’s decision concerning the applicant’s sister’s (Malika) age.

   The delegate found that the documents were undated, did not record the applicant’s date of birth and, therefore, lacked the contextual relevance to the applicant’s age at the time. Additionally, she found the academic year in Afghanistan consists of two semesters and runs from March to January. She reasoned that if the applicant was enrolled in year 4 in the academic year 2015 their completion of semester two results would be recorded in 2016 i.e. academic year 2015/16. While the delegate did not place any weight on the school reports for the above reasons, she did not find that they were bogus documents. With respect, the school reports recorded the Afghan calendar year and as such, we submit contain sufficient contextual information for the purposes of this visa application.

   Regarding the delegate’s comment that a student enrolled in year 4 in 2015 would have results recorded in 2016, clarification regarding the Afghan and Gregorian calendars may assist. In Afghanistan, the school academic year begins in the first month of the new year, Hamal, and finishes in the nineth month of Qaws. Thus, the academic year is completed within the twelve calendar months of the Afghan calendar. The first month in the Afghan calendar roughly coincides with the third month (March) in the Gregorian calendar. English translations for the school reports submitted have given the Gregorian calendar year in which the academic year started, not finished.

   Further, the visa applicant, Shafiqa Ahmadi, approached the School Principal of Hout Quol Girls School, Ms Shafiqa Amiri, requesting copies of school reports which the visa applicants had lost. Ms Amiri has provided a statement confirming the attendance of the visa applicants at the school as per the table below.

   24.In addition to the documents provided to the Department, the sponsor (via his representative) submitted the following documents in support of the visa application:

   ·Statement from the School Principal of Hout Quol Girls School, Shafiqa Amiri dated 21 November 2023

   ·Letter from School Principal of Hout Quol Girls School, Shafiqa Amiri undated

   ·School report for year 2015 (Class 7)

   ·School report for year 2017 (Class 9)

   ·School report for year 2020 (Class 12)

   ·COVID vaccination certificate dated 26 December 2022.

   ·Tetanus & Diphtheria vaccination certificate dated 26 September 2018

   ·Statutory Declaration by sponsor dated 21 November 2023

   It is submitted that the school reports contain sufficient information to corroborate the evidence of the visa applicants age as that stated in their taskeras and passports.

   The applicant obtained her taskera and passport based on false or misleading declarations in a material particular relevant to clause 117.211, namely that the applicant was under 18 years of age at time of lodgement.

2. The delegate was not satisfied the applicants had satisfied the Minister as to their identity and, therefore, concluded that the applicants failed to meet Public Interest Criteria (PIC) 4020(2A) of Clause 117.223 of the Migration Regulations.

   Under Departmental policy, ‘Identity, biometrics and immigration status’, ‘False Identity’ is:

   An individual who, in order to obtain an outcome, represents themselves as another person or as a fictitious person or who changes, omits or otherwise falsifies, or attempts to falsify, identity elements, including but not limited to:

   • name

   • date of birth

   • place of birth

   • citizenship or nationality

   • address

   • facial image

   • family structure

   • other personal identifiers (as defined in s 5A(1) of the Migration Act).

3. The representative further opined that:

   In concluding that the applicant had failed to satisfy the Minister as to her identity, the delegate relied upon, inter alia, a finding that the visa applicant had obtained her taskera by providing a false birth date. We have addressed the faults in logic, methodology and paucity of evidence underpinning the delegate’s findings above and consequently, submit that the visa applicant’s taskera and passport can be relied upon to satisfy the Minister as to her birth date and, therefore, her identity. In addition to the identity documents, the delegate had before her the DNA test results, the Form 54, Form 1229, Form 80 and the family tree diagram lodged in respect of the 2018 application and the Form 80, Form 842 and UNHCR interview notes lodged in respect of the 2013 application.

   On 8 October 2013, the sponsor was interviewed by UNHCR and determined to be a Hazara Shia from Angori, Jaghori, Afghanistan. In response to the UNHCR officer’s question “Have you declared all your relatives”, the sponsor answered “Yes”. UNHCR also recorded the sponsor as having 4 sisters and one brother.

   In response to Question 13 of Form 842, the sponsor listed his parents and siblings. In response to Questions 51-57 of the Form 80, the sponsor again listed his parents and siblings. Of note is the fact that all dates of birth for all siblings in both the Form 842 and Form 80 are recorded as 1 January which is consistent with the sponsor’s Statutory Declaration in which he explained he gave an estimate of their birth year.

   If the DNA test results are accepted, the only issue is the date of birth, not the identity of the visa applicant. Uncertainty regarding date of birth is intrinsic in the Afghan cohort as no Birth Certificates are issued and taskeras are obtained on self-declared age.

4. The representative further opined as follows:

   With respect to the second part, this visa applicant is the only one whose new identity documentation was obtained immediately prior to this visa lodgement. However, as the child born between Sima and Malika, if the Tribunal accepts that Sima’s taskera was issued in 2012 and Malika’s first taskera was issued in 2006, then, by extension, Shafiqa’s birth year falls between 2001 and 2005, making her under 18 at time of lodgement.

   This visa applicant is the only visa applicant to have self-declared her age in 2018, immediately prior to the 2018 application being made. For the reasons stated above, it is hard to understand, based on the evidence, how the delegate found that the visa applicant lowered her age after being told by her brother in 2018 that she could apply for an Orphan Relative sc117 visa when she is sandwiched between two siblings for whom there is more than sufficient, probative evidence of their ages being as stated in their taskeras. We submit that no weight be given to the delegate’s second reason for concluding that this visa applicant failed to satisfy PIC 4020(2A).

5. She further comments:

   The delegate took the birth years declared in the 2013 application as correct and, therefore, accepted that the mother was either 42 or 44 years old when giving birth to this visa applicant. As the mother’s exact date of birth is unknown, taking the birth year of 1956, she could have been 45-47 at the time of this visa applicant’s birth. We submit that, as the DNA results show the mother gave birth to Sima after Shafiqa, it must be accepted that the mother gave birth between these ages. For this reason, we submit that the mother’s age should not be given any weight in determining the correct age of the visa applicant given the accepted evidence of her fertility in her late forties.

   Even if the age of the applicant is uncertain for the above reasons, we submit that age alone cannot ground a finding that the applicant has failed to satisfy the Minister of her identity. All other information regarding family composition, ethnicity, nationality and address are consistent across two visa applications made 5 years apart.

   We submit that, for the above reasons, the Member can be satisfied that this visa applicant satisfies PIC 4020(2A).

   Finding on Identity 4040(2A)

6. The Tribunal is well aware of the vagaries of Afghani birth registration from copious professional experience. However, having considered all the new information (and the cogent arguments made by the representative) it finds it is now satisfied as to the visa applicant’s identity and that there was no falsification of paperwork on her part.

7. Therefore, the applicant meets PIC 4020(2A).

   Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

8. 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).

9. He Tribunal finds that the applicant was under 18 at the time the application for the refused visa was made.

10. Therefore, PIC 4020(2B) does not apply.

11. Based on the above, the applicant does satisfy PIC 4020 for the purposes of cl 117.223.

    DECISION

12. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·Public Interest Criterion 4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations

    Michael Cooke
    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.

    …