Deuba (Migration)

[2021] AATA 4753

Deuba (Migration) [2021] AATA 4753 (9 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bharat Deuba

CASE NUMBER:  2005665

HOME AFFAIRS REFERENCE(S):          BCC2019/4525704

MEMBER:Penelope Hunter

DATE:9 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 09 December 2021 at 10:59am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 600 (Student) – bogus document or false or misleading information in visa application – statement of mother’s account provided as evidence of sufficient funds – verification checks found statement not issued by bank and balance not as claimed – discretion to waive criterion – concession that information incorrect and document bogus – claim of fraud by bank employee – funds available from other sources – study and work history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, criterion 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
Vyas v MIMAC [2013] FCCA 1226

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 5 March 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 September 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that Public Interest Criterion (PIC) 4020 was not met. Further, the delegate found that there were no compelling or compassionate reasons that would justify the grant of the visa and as such did not waive the requirements of PIC 4020(1) under PIC 4020(4).

3. The Tribunal received an application for review from the applicant on 20 March 2020, together with a copy of the delegate’s decision record.

4. On 7 October 2021, the Tribunal invited the applicant to attend a hearing on 2 November 2021, to give evidence and present arguments.

5. On 19 October 2021, the representative for the applicant requested that the hearing be postponed for eight weeks on the basis of their recent appointment, and that documents had been requested from the Department.

6. On 20 October 2021, the Tribunal wrote to the applicant and advised that an eight-week postponement was refused, but that the hearing was postponed to 17 November 2021.

7. On 25 October 2021, the Tribunal received a further request for postponement from the representative for the applicant, enclosing correspondence from the Department regarding the applicant’s Freedom of Information request. The Tribunal again rescheduled the hearing to 7 December 2021.

8. The applicant appeared before the Tribunal on 7 December 2021 by telephone to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal was assisted at the hearing by an interpreter in the English and Nepali languages. The applicant was represented in relation to the review by his registered migration agent and his agent was also present for the hearing. The Tribunal received evidence and submissions from the applicant and submissions from his representative and is satisfied that he had a reasonable opportunity to participate in the hearing process.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 500.217 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).

11. 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 a material particular?

12. 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.

13. 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.

14. 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.

15. The applicant is a 22-year-old citizen of Nepal and applied for the visa in order to undertake study in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management. As disclosed to the applicant at the hearing, the Tribunal had before it a copy of the applicant’s Provider Registration and International Student Management System records (PRISMS) which contain no information considered adverse to the applicant, and confirm that he had undertaken study in the courses he has claimed. As part of his visa application the applicant provided to the Department, as evidence that he would have sufficient funds available to meet his costs and expenses during his intended stay, a certificate dated 5 September 2019 from the Nabil Bank, in respect of an account of Sakuntala Devi Deuba. The certificate also stated that the balance as at 5 September 2019, was NPR 3,500,500.55.

16. On 3 February 2020, the delegate records in their decision record, a Departmental officer completed verification of the bank statement that the applicant provided and it was confirmed that the account existed, however the balance of the account as at 5 September 2019 was not NPR 3,500,500.55 and the bank certificate provided with the visa application was not issued by the Nabil Bank.

17. On 5 February 2020, the Department wrote to the applicant, informed him that the bank certificate was suspected non-genuine information and the applicant was invited to comment.

18. On 3 March 2020 the applicant responded and provided a further sanction letter for an education loan from NCC Bank dated 1 March 2020. In his letter of response the applicant claimed that his parents went to the bank to get an education loan but one of the staff said that the loan process could take more than a month, it was suggested that they pay a month’s interest and a statement could be issued. The applicant claimed that his parents had been scammed by a previous bank officer and that a complaint had been made to the branch manager for an investigation. The applicant further set out that the Nabil Bank did not provide any clarification or a solution. His parents went to another bank and applied for an education loan, which had been submitted from the NCC Bank.

19. The delegate considered the response of the applicant but placed more weight on the investigations carried out by the Department. It was found that the applicant had given a bogus document within the meaning of s 5(1) of the Act, and therefore he did not satisfy PIC 4020(1).

20. On 1 December 2021, the applicant provided further documents and submissions to the Tribunal including the following:

    i.A representative’s submission.

    ii.A written statement of the applicant.

    iii.A written statement of Sakuntala Devi Deuba, the applicant’s mother.

    iv.A copy of the passport of the applicant’s mother.

    v.Applicant’s citizenship certificate.

    vi.Family relationship certificate.

    vii.Birth certificate of the applicant’s brother.

    viii.Birth certificate of the applicant’s sister.

    ix.Proof of permanent residency of USA of the applicant’s sister.

    x.Academic documents of the applicant (Australia).

    xi.Academic documents of the applicant (Nepal).

    xii.AFP certificate of the applicant.

    xiii.Resume of the applicant.

    xiv.Work reference letters of the applicant.

    xv.Tax documents of the applicant.

    xvi.Superfund statement of the applicant.

    xvii.Payslips of the applicant’s current and previous job.

    xviii.Income certificate of the applicant’s mother.

    xix.Land ownership certificate of the applicant’s mother.

    xx.OSHC certificate of the applicant.

    xxi.Confirmation of Enrolment (COE) for the applicant in a Certificate IV in Commercial Cookery at Evolution Hospitality Institute with course dates from 8 October 2019 to 4 October 2021.

    xxii.COE for the applicant in a Diploma of Hospitality Management at Evolution Hospitality Institute with course dates from  5 October 2021 to 17 December 2021.

    xxiii.Applicant’s father’s death certificate.

21. The statement of the applicant’s mother, set out for the Tribunal relevant information as to how the bank certificate was obtained. The statement is typed in English, and Mrs Deuba sets out that she is not an educated person but the document was prepared with the assistance of her son-in-law. It is similar in typeface and appearance to the statement of the applicant. The applicant told the Tribunal at the hearing that it was settled with the assistance of his representative once his brother-in-law obtained the relevant information, hence the similarity in typeface. It purports to be signed by Mrs Deuba, but is not in the form of a sworn statement. Mrs Deuba sets out the following (in summary):

    On 4 September 2019, she contacted the Nabil bank in her hometown Atta1iya, Kailali, Nepal for an education loan. The staff (Named Rajendra Shrestha) of the bank at the front counter advised her that the education loan process was lengthy (more than a month) and process for approval was complex. Instead, the staff suggested that if she could pay them a bank fee, they would deposit the required amount into my bank account.

    On 5 September 2019, she went to the branch and handed in NPR 90,000 (Ninety thousand rupees) to the same staff, he took her bank details and she was asked to come and see him the next day. She did not have any contact or discussion with any other bank staff as everything took place inside the bank.

    On 6 September 2019, the same staff handed her the 'Certificate of Account Balance' showing that she had NPR 3,500,500.55 in her saving account.

    She sent a scan copy of the document to the applicant and had no reason to believe it would have been a bogus document as it was handed to her by staff of the bank at the counter.

    About five months later upon learning of information about the statement from the applicant she rushed to the bank and the staff member, Rajendra Shrestha had quit his jo. The branch manager Mr. Rujeet Ojha took her complaint and she was advised that they would investigate and they would update her as early as possible. No written evidence of the complaint was given to her, she was told that is how they handle complaints in her branch. They did not agree to refund.

    The bank investigation process is slow. They could not give her any news or update. She had been a victim of fraud.

22. In his statement the applicant claimed that he should not be held responsible for the fraudulent activity of the bank staff that neither he nor his mother were aware of. The applicant told the Tribunal at the hearing that when he had obtained his first Student visa, his family had not obtained a loan but provided him with a bank statement that demonstrated that 35 Nepalese Lakh were held in an account. When he applied for the visa under review the applicant claimed that he asked his mother to send bank documents. He did not know and did not enquire about what took place at the bank. He believed that the document his mother had supplied was legitimate until he received further correspondence from the Department inviting him to comment.

23. In response to questioning from the Tribunal the applicant confirmed that he did not maintain that the bank certificate of 5 September 2019 purporting to be issued from the Nabil Bank was a legitimate document. The applicant told the Tribunal that once notified of the issues by the Department his enquiries had confirmed that the document was not correctly issued.

24. The applicant further told the Tribunal that the bank staff had scammed his innocent mother and she believed that what she had obtained was a legitimate banking process for overseas students.

25. The Tribunal has carefully considered the evidence and submissions presented by the applicant and his representative. In their submissions the representative of the applicant, argued that the applicant and his mother had explained their innocence in relation to the document provided. It was claimed that there were compelling reasons beyond the applicant’s control and that it was hard to establish if the bank document had the quality of purposeful falsity. The Tribunal accepts that the applicant had no role in obtaining from the Nabil Bank the bank certificate dated 5 September 2019. The Tribunal also accepts as probable that the applicant also had no reason to doubt the authenticity of the document until invited to comment by the Department in February 2020. However for PIC 4020 to be engaged it is not necessary to show knowing complicity by the applicant.

26. If the Tribunal is to accept the unsworn statement of the applicant’s mother as correct, at the relevant time she was seeking a student loan from the Nabil Bank to demonstrate that there were sufficient funds available to meet the costs and expenses of the applicant during his intended stay while on his second Student visa. As put to the applicant at the hearing, following from this, the reason that a loan would be required is that Mrs Deuba was aware that she did not have sufficient funds in her account to demonstrate that she held 35 Nepalese Lakh in an account with the Nabil Bank. The applicant further acknowledged that this was correct. Further, while the Tribunal has considered the claim of the applicant that it was represented to her that paying a fee to the Nabil Bank for a statement or certificate to represent that she did have these funds in her account was a service or process the Nabil Bank offered, the Tribunal nevertheless considers that there was an element of falsity to that representation. For Mrs Deuba ought reasonably to have been aware that she did not possess those funds and had not gone through a process to borrow those funds. A further falsity was perpetrated in presenting the certificate dated 5 September 2019 to demonstrate that these were funds that would be available to meet the costs and expenses of the applicant during the period of his intended stay. Mrs Deuba ought reasonably to have known that these particular funds, that she had not borrowed, rather had paid to have represented as in her account, were not readily available for the applicant’s educational expenses.

27. It is accepted that as a consequence of the enquiries of the Department, directly with the Nabil Bank, there is evidence that the bank certificate of the Nabil Bank in respect of Mrs Deuba’s account dated 5 September 2019 is a bogus document. The applicant has not presented evidence to dispute the information obtained by the Department at the time of their enquiries, and confirmed in his evidence to the Tribunal that his own enquiries with the bank had confirmed that the document lacked legitimacy and was the process of a scam by a bank officer. The applicant told the Tribunal that his mother’s complaint to the bank about the process was verbal and he said he has had no response from the bank as to the outcome of their investigations. There is no evidence from the Nabil Bank accepting responsibility for the production of the document or legitimising the process of its production. The Tribunal finds that the Nabil Bank statement of 5 September 2019, is a bogus document because it purports to have been but was not, issued by the bank in respect of Mrs Deuba and further it had been altered to record funds in her account at the relevant date by a person who did not have the authority to do so. The Tribunal is also satisfied that there was an element of deception in the document produced and it was not just produced due to an innocent mistake. Mrs Deuba paid to have it represented that there was money in her account she did not legitimately expect to own, whether or not she thought that this was a process the bank offered.

28. Although it is accepted that the applicant’s family were able to demonstrate that funds were able to be obtained through the NCC Bank, and the Tribunal acknowledges the submissions of the applicant that his family could have also drawn on funds from his sister in the United States or his uncle, this does not negate the presentation of this document. Finally, the Tribunal finds that although the applicant had no agency in the creation of the document, his mother who he engaged to provide him with financial evidence did, and this was a document that was given to the Department in the course of the visa application.

29. The Tribunal is satisfied that there is evidence that the applicant has given, or caused to be given, to the Department a bogus document in relation to his visa application.

1. Therefore, the applicant does not meet PIC 4020(1).

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

2. 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).

3. There is no evidence before the Tribunal that the applicant or any member of his family unit has been refused a visa in the relevant period.

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

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

5. 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.

6. 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.

7. According to the Explanatory Statement it was intended that the granting of the waiver would relate solely to compelling circumstances affecting Australia’s interests, or the compassionate and compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, not the interests of the visa applicant.[1] The types of circumstances that may involve compelling or compassionate reasons for waiving the requirements of PIC 4020 identified in the Explanatory Statement include:

   ·family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);

   ·that family members in Australia would be left without financial or emotional support; and

   ·a parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).[2]

   [1] Explanatory Statement to SLI 2011, No 13, at 19. The Court in Vyas v MIMAC [2013] FCCA 1226 found the ES to be of assistance in considering the plain words of the waiver provision such that it could not be said that it would be sufficient for the applicants to demonstrate that their circumstances were compelling or compassionate alone, but that there has to be a connection with Australia or an Australian citizen or permanent resident, or eligible New Zealand citizen, because otherwise there would be no utility in having those words in the clause (at [14]).

   [2] Explanatory Statement to SLI 2011, No 13, at 19–20.

8. In addition, the Department’s guidelines suggest 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 (noting that gaining employer sponsorship is not considered sufficient grounds for a waiver); or

   ·Australia’s relationship with a foreign government would be damaged were the person not granted the visa; or

   ·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.[3]

   [3] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The Integrity PIC – Compelling and/or compassionate circumstances – Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).

9. The Department’s policy guidelines further state that compelling circumstances affecting the interests of Australia would not include circumstances where the non-citizen merely claims that, if granted the visa, they would work and pay taxes in Australia, pay fees to an education provider or spend money in Australia.[4]

   [4] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).

10. It is accepted that the applicant has studied while awaiting review and demonstrated that he did genuinely desire qualifications for which he had sought the visa. It was submitted it was a compelling circumstance that the applicant did not instruct anyone to obtain a bogus document and that he was not involved in the production of the document that was presented. The Tribunal accepts the lack of direct involvement of the applicant. The applicant further said that he did not wish to be penalised for something that was done to him, if rejected it would be a stain upon him and if the requirements of PIC 4020 were not waived everyone in his community in Nepal would know that he was sent back by judgment and not of his own volition. The applicant further stated to the Tribunal that he still had things to do in Australia and some plans to meet other chefs. He indicated that the visa refusal would have a considerable impact on his future career, and although it was his intention to return to Nepal at the conclusion of his course, he said he wanted to clear his name. In addition to acknowledging that the applicant was not involved in the production of the document the Tribunal also accepts that the applicant would be impacted if the decision under review were to be affirmed. Yet these are all matters personal to the applicant, and are not a compassionate or compelling circumstance affecting the interests of an Australian citizen, Australian resident or an eligible New Zealand citizen. It is also noted that the applicant’s final course is to conclude in less than two weeks, he will have obtained the qualifications he sought when he applied for the visa and it is his submission, and evidence at the hearing, that he intended to return to Nepal in any event at the conclusion of his course. It is not the case that the applicant would have lost the opportunity to study and work in Australia and if the applicant choses to divulge the outcome of these proceedings to others in Nepal it is a matter for him.

11. The applicant also submitted to the Tribunal that if the requirements of PIC 4020 were not waived it would have an adverse impact upon his mother. The submission was to the effect that she did not intend to bring about these circumstances and had been misled into providing the document. His mother had struggled to provide for the applicant and his siblings as a single parent following the death of his father, and there would be family shame associated with the applicant being returned for bogus financial documents when they did have sufficient funds. The Tribunal accepts that in the circumstances presented the applicant’s mother may feel significantly adversely any decision to refuse the visa under review. However, this is also not a relevant consideration for the Tribunal in respect of the waiver as it is not a compassionate or compelling circumstance affecting the interests of an Australian citizen, Australian resident or an eligible New Zealand citizen.

12. In addition, the applicant has presented evidence that the applicant has worked while awaiting review and paid taxes. The Tribunal acknowledges the contributions of the applicant to the Australian economy via his income tax and Medicare levy and surcharges, yet the payment of taxes in employment income is not a circumstance different from any other person eligible to be granted a Student visa. Department policy also specifically identifies that compelling circumstances affecting the interests of Australia would not include circumstances where the applicant merely claims that they would work and pay taxes in Australia. The representative for the applicant further submitted that at the time of COVID-19 restrictions the applicant has made a valuable contribution to the hospitality industry. The Tribunal accepts that the applicant has been employed by a number of businesses in Australia, however the evidence does not rise to a level to demonstrate that the importance of the applicant’s part-time contribution to the hospitality workforce was such that it would rise to compassionate or compelling circumstances affecting the interests of Australia, none of the applicant’s employers have provided evidence as to the impact of the visa refusal and given that the applicant claims to intend to return to his home country shortly after the conclusion of his course, the Tribunal finds his services would have in any event been lost to the Australian hospitality sector. Nor is it established that Australia’s trade and business opportunities would be adversely affected or that Australia would miss out on a significant benefit. Finally, the Tribunal is also not satisfied that for this reason there is any evidence that there are compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian resident or an eligible New Zealand citizen.

13. Having considered the circumstances of the applicant’s case and the reasons advanced for the exercise of the waiver, the Tribunal is not satisfied that, singly or cumulatively, there are compelling circumstances affecting Australia’s interests, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the grant of the visa.

14. For the above reasons, the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived pursuant to PIC 4020(4).

15. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Penelope Hunter
    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.

    …