FOWLER (Migration)

[2018] AATA 5636

FOWLER (Migration) [2018] AATA 5636 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Veronica Senge Fowler

VISA APPLICANT:  Mr Henry Aryem

CASE NUMBER:  1709937

DIBP REFERENCE(S):  OSF2015/075113

MEMBER:Hugh Sanderson

DATE:29 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.

Statement made on 29 November 2018 at 10:40am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – child of review applicant’s sister – information in previous applications sponsored by the review applicant – false and misleading information – age at time of application – bogus document – education history – Examination for the Uganda Certificate of Education – credibility issues – waiver of requirement – health of review applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 117.223; Schedule 4, PIC 4020

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

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 Immigration on 14 March 2017 to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 May 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.117.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant provided false and misleading information as to a relevant aspect of the application and did not satisfy Public Interest Criteria 4020 (PIC 4020). Further, the delegate was not satisfied there were reasons to waive the PIC 4020 criteria.

   Background

3. The review applicant was born in Uganda and first entered Australia in 1974. She is an Australian citizen.

4. The visa applicant was born in Uganda. He claims to have been born on 1 July 1997. He stated that his father was Charles Muritiih and his mother was Wiajik Muritiih. It was claimed that he had five siblings who were born in 1981, 1985, 1989, 1990 and 1993. The visa applicant’s mother would have been 45 years old at the date the visa applicant claimed he was born. It was claimed that his mother was the sister of the review applicant. It was claimed that his mother died on 4 September 2006 and his father died on 29 July 2013.

5. The Department noted that the review applicant had previously sponsored people for visas to reside in Australia. In those applications, the review applicant had not stated that the visa applicant’s mother was her sibling, despite five other siblings being identified in those applications. The Department asked the parties to respond to this information and also provide further information in support of the application, particularly addressing the age of the visa applicant, including details of the visa applicant’s schooling.

6. The review applicant provided a statement where she claimed that it was just a mistake that she had failed to include the visa applicant’s mother as her sibling in the earlier proceedings. She stated that she was willing to undergo DNA testing to establish her relationship with the visa applicant.

7. The visa applicant provided various school records in support of his application and to establish his age. This included a certificate for the visa applicant for the Examination for the Uganda Certificate of Education from Mazzoldi College, Nakaseke, dated 2010. He also provided a certificate from the World Ahead Secondary School, Matugga.

8. An officer from the Department contacted the head teacher at World Ahead Secondary School who provided the following information:

   ·The visa applicant was first enrolled in the school on 21 February 2007 to complete his O levels, being the end of secondary school;

   ·He had transferred to the school from Mazzoldi College;

   ·The review applicant’s brother, Ronald Luzinyi, was listed as the visa applicant’s guardian at the time of enrolment;

   ·The school had no contact with the visa applicant’s parents; and

   ·The date of birth of the visa applicant was not recorded by the school.

9. The Department wrote to the visa applicant noting that as he provided documents stating that he had completed the Examination for the Uganda Certificate of Education in 2010 he would have been 13 or 14 years of age when he completed that year of school if his claims as to his age were accepted. As schooling in Uganda runs for 12 years plus a further two years of upper secondary study for the attainment of A levels it was not plausible that the applicant was 13 or 14 years when he completed that study. On this basis, it was found that there was evidence suggesting the visa applicant had provided misleading information as part of his visa application, specifically relating to his claimed age.

10. The visa applicant provided a response where he claimed that he had supplied the incorrect certificate from the Uganda National Examination Board. He claimed that although the name was the same, he did not sit for the examination in 2010 and never attended Mazzoldi College, Nakaseke. He claimed that in 2010 he attended Kirombe Infants School and then attended World Ahead Secondary School until 2013. The applicant provided letters from both schools stating that he was a student at the Kirombe Infants School for one term in 2010 and at the World Ahead Secondary School from 2011 to 2013.

11. The delegate who considered the application found that the visa applicant had provided false and misleading information in support of the visa application, that being his date of birth. The delegate found that the information from the Uganda National Examination Board that the applicant had completed his secondary schooling in 2010 meant that he was significantly older than 18 years of age at the time of the application. Accordingly, the delegate found that the visa applicant did not satisfy PIC 4020(1)(a).

12. The delegate considered whether there were any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that would justify granting the visa. The delegate noted that no submissions had been made in respect of this with the agent simply arguing that there was no intent to mislead the Department and the information provided by the Uganda National Examination Board was incorrect. This had been provided by the visa applicant because it was claimed he was “an immature adult who was not aware that he received the incorrect documents”.

13. The delegate was not satisfied that the information provided would justify waiving the requirements of PIC 4020(1)(a) and therefore found that the applicant did not meet the criteria in cl.117.223 and refused the application.

    Information to the Tribunal

14. The review applicant provided letters from herself, the visa applicant and the visa applicant’s uncle (with whom it was claimed he lives) in support of the application. None of the letters were signed by the people claiming to have written them.

15. A letter was provided from the head teacher of Kirombe Primary School claiming the visa applicant was a pupil at their school in 2010.

16. The review applicant appeared before the Tribunal by video on 4 October 2018 to give evidence and present arguments. The review applicant was represented in relation to the review by her registered migration agent who attended the hearing.

17. The Tribunal commenced the hearing by explaining to the review applicant the process under s.359AA of the Act. It explained to the review applicant that it would be putting to her information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and then invite the review applicant to comment on or respond to the information. If she required more time, she could request an adjournment.

18. The review applicant provided details of her relatives. She confirmed that the visa applicant’s mother was her sister. She confirmed they shared the same mother. The Tribunal noted that the review applicant’s mother had previously applied for a visa to reside in Australia and had not included the visa applicant’s mother when she was required to provide information about all her children. The review applicant said that her mother had only been asked to provide names of her dependent children which was why the visa applicant’s mother was not included in the information provided in those applications.

19. The Tribunal referred to the process under s.359AA of the Act referred to above. The Tribunal referred to the review applicant’s mother’s application for a family residence visa made in 1998 which was sponsored by the review applicant. In that application the review applicant’s mother was required to provide details of all her children, whether included in the application or not and including any children who are deceased. In that application, she only referred to three children which did not include the visa applicant’s mother. The review applicant’s mother was then requested by the Department to specifically provide details of all her children both alive and deceased. She was required to explain why in previous applications the details with regards to the children were different, only disclosing two children. The review applicant’s mother provided a statement providing further details of her children which again did not include any information about the visa applicant’s mother.

20. This information was relevant as it undermined the credibility of the information being provided by the review applicant and also indicated that the visa applicant was not a relative of the review applicant. This could lead the Tribunal to conclude that the review applicant was not providing truthful information to the Tribunal and that the visa applicant did not meet the definition of an orphan relative.

21. The review applicant said that the system when the application was made did not ask her or her mother to provide details of the children of her mother. The Tribunal said this was not correct. The review applicant said that her mother did provide the names, but as she was old she forgot some of her children. She said there were too many children to list and so did not include the visa applicant’s mother. The Tribunal indicated that this was not a plausible or credible response however the review applicant said she had nothing further to add.

22. The review applicant said that she spoke regularly to the visa applicant’s mother by telephone when she was alive. She said that the visa applicant’s mother died suddenly from a brain tumour in 2006. She said that she was in hospital for about five days to a week prior to her death. She said that she had gone to visit her sister in July and August 2006 prior to her death.

23. The review applicant said that she could not provide information as to the school that the visa applicant was attending. She said that sometimes the visa applicant did attend school, but sometimes he did not attend school. She said that the visa applicant sometimes lied to her as to what school he was attending because he wanted to please her because she was paying for the school fees.

24. The Tribunal referred to the process under s.359AA of the Act. The Tribunal referred to the information obtained by the Department when they spoke to the head teacher at World Ahead Secondary School which was that the visa applicant attended senior high at that school in 2012 but did not continue his study after that. Prior to enrolling at that school, he was attending secondary school at Mazzoldi College.

25. This was relevant as it indicated the visa applicant had completed junior high school prior to attending World Ahead Secondary School and would have been in the equivalent of year 11 at an Australian high school. This would mean that he would be turning 18 in 2013 and not later than 2014. This was relevant as it indicated that at the time of the visa application the visa applicant was over the age of 18 and was providing false information when he claimed that he was only 17 years and 10 months old.

26. The review applicant said that all she knows is that the information provided is true. She said that she did not know what school the visa applicant was attending and he sometimes lied to her about what school he was going to.

27. The Tribunal invited the review applicant to provide any reasons for waiving the PIC 4020 criteria. The review applicant said that she currently lives with her husband who is 76 and she has a family business which she is planning to hand to her daughter to run. She said that she wanted the visa applicant to live with her. She said that there would be nothing she could do if the visa was refused.

28. The Tribunal attempted to telephone the visa applicant and other witnesses the review applicant had requested the Tribunal speak to. Unfortunately, the Tribunal was not able to contact the witnesses on the telephone numbers provided. Accordingly the hearing was postponed to another day.

29. The review applicant appeared before the Tribunal by video on 15 November 2018 at the adjourned hearing. The visa applicant and his uncle were also able to give evidence by way of telephone link. The review applicant was represented in relation to the review by her registered migration agent who attended the hearing.

30. The review applicant said that when she sent him money for school fees she did not know what school he was attending or if he was attending school. She said that the visa applicant was staying with his cousin, Edward. She said that he was not working, but volunteered to do things such as ironing work around the house and was given food for this. She said that he stopped studying when the application was filed. She said that even if she sent money to him to go to school he did not go to school.

31. The visa applicant gave evidence by way of telephone link. He provided details of where he was currently living. He said that he was not in paid employment.

32. The visa applicant said that he finished school in 2013, but did not do the exams as he did not have the school fees. He said that school was the World Ahead Secondary School and he started at that school in 2011. He said that before that school he attended Kirombe Infants School. He said that he attended that school for only one year. He said that he had not attended any school before this and had only done four years of schooling. Before this he just stayed at home and studied.

33. The Tribunal asked the visa applicant as to how he obtained the certificate from Mazzoldi College. He said that he wanted to get documents for the application and found somebody to help him get the documents. He said that it was just somebody he met and he does not know the name of this person or where he is now. The Tribunal asked him how he got the death certificates for his parents. He said that he went to the local council and the chairperson from the local council had met his parents and so he was given the certificates.

34. The Tribunal referred to the report from the Department when they contacted World Ahead Secondary School and spoke to a head teacher who advised that the visa applicant had transferred to that school from the Mazzoldi College. The Tribunal asked the visa applicant why the World Ahead School would say that he had transferred to their school from Mazzoldi College. The visa applicant said that he never attended Mazzoldi College. He said that he had nothing to say about why the World Ahead School head teacher would have said that to the Department.

35. The Tribunal asked the applicant again why he would have provided a certificate from Mazzoldi College. He said that when they were applying for the visa the lawyer was always asking for documents. He said that he paid someone to make up the certificate from Mazzoldi College. He did this because he did not want to disappoint his aunt. He said the person he spoke to promised he could get the documentation he needed. He confirmed that he paid someone to provide false documents which were then given to the Department in support of the application. He said that he did not know how this would affect the application.

36. The visa applicant’s uncle, Edward King gave evidence in support of the application. He said the visa applicant was living with him from 2010 to 2014. He said that the visa applicant did not go to school before 2010. He had about two months at Kirombe Infants School starting in February 2010. He said that he then attended World Ahead Secondary School. He said that he never attended Mazzoldi College.

37. The Tribunal asked Mr King how the certificate from Mazzoldi College was obtained. Mr King said that the review applicant was overseas and asking the visa applicant to obtain documents. He said that the visa applicant did not want to shame the review applicant by showing that he was not doing any study. He said the visa applicant then arranged to get the documents to say that he was studying. He said the documents that were provided by the visa applicant to the Department were not genuine.

38. At the request of the review applicant’s agent, the visa applicant gave evidence again. He was asked what was the purpose of providing to the Department the document from Mazzoldi College. He said that his aunt, the review applicant, was providing him money for school fees and he believed that she would be upset with him. He said it was the idea of a person he spoke to, who he doesn’t know and cannot name, to get the documents for him. He did not know what to do because he was being asked to provide the documents. He said that he was told that no one would bother if he gave them false documents. He did not know that it would cause any problems, but was just told to provide the documents by his lawyers.

39. The Tribunal again interviewed the review applicant. The Tribunal referred to the process under s.359AA of the Act set out above. The Tribunal referred to the evidence given by the visa applicant and by Mr King that the document provided by the visa applicant to the Department from Mazzoldi College was a false document, intentionally created by the visa applicant and given by him to the Department in support of the application. This was relevant as it indicated that the visa applicant had given to the Department a bogus document that was false or misleading in a material particular in relation to his application. This would indicate that the visa applicant did not meet the criteria in PIC 4020 as he had provided a bogus document to the Department in support of his application.

40. This information was also relevant as it was inconsistent with information previously provided by the visa applicant that the certificate from Mazzoldi College was a genuine document but had been mistakenly issued by the relevant authorities. The fact that the visa applicant had previously provided a false claim as to how that certificate was generated and now claimed that the bogus document was not genuine undermined the credibility of all information given by the visa applicant to the Tribunal.

41. The review applicant said that she did not know what the visa applicant was using the money for that she sent him to go to school. She said that it was a false document which the visa applicant sent to the lawyer just to please her. She said that the visa applicant was not telling the truth.

42. After the hearing, the review applicant’s agent made submissions to the Tribunal including the following:

    ·The review applicant has been operating a small African hairstyling business with a gross income of about $60,000 per year which is barely enough to sustain herself and her husband;

    ·The review applicant’s health is “not the best” and she has to look after her husband whose health is worse than hers;

    ·The review applicant has three children, none of whom can provide assistance to her;

    ·The review applicant hopes the visa applicant can look after her business and also herself and her husband;

    ·The visa applicant is not a highly educated person, and was honest in evidence to the Tribunal that he had provided a bogus document, but in his own mind did not believe that this would hurt his application;

    ·The initial assessment by the Department was that the visa applicant was over 18 years of age and the Department requested the document without stating the reason why they wanted to get that document; and

    ·There are compassionate circumstances that affect the review applicant and her husband as if the visa applicant is not allowed to enter Australia, it is likely she will have to close her business.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The issue in this review is whether the visa applicant meets 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 three 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).

3. 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?

4. 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.

5. 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.

6. 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.

7. The basis of the Department’s decision was that the visa applicant had given false or misleading information to support his visa application, specifically with regards to his claimed age. This was, in part, based on the certificate the visa applicant had provided to the Department of the Examination for the Uganda Certificate of Education stating that he had attended Mazzoldi College in 2010. The Department had requested this document as it was relevant to make an assessment of the visa applicant’s age.

8. At the hearing, the visa applicant acknowledged that this document was bogus. He had paid a person, he now claims he cannot identify or name, to provide this document to meet the requirements from the Department. He acknowledged that the information contained in this document has not been issued by the appropriate authorities and he claims that the information is incorrect. He claims that he never attended Mazzoldi College.

9. The Tribunal finds that the relevant document is a bogus document provided by the visa applicant in support of his application. The document is relevant in providing information as to his study and also as it would indicate the age of the visa applicant.

10. The fact that the visa applicant has acknowledged that he provided this bogus document to the Department and that he never attended Mazzoldi College calls into question the information that he provided to World Ahead Secondary School when he enrolled there. When an officer from the Department contacted the school’s head teacher, the head teacher advised the Department that the applicant had transferred from Mazzoldi College. As the visa applicant claims he never attended the college, this would indicate that the information the visa applicant provided to the World Ahead Secondary School is also based on false information. It would further indicate that the claims made by the visa applicant as to his age are not credible and that at the time of the application he was over 18 years old.

11. Regardless of whether the information provided by the applicant to the Department that he was under 18 years of age at the time of the application, the Tribunal finds the applicant has provided a bogus document as defined in s.5(1) of the Act. That document, the Examination for the Uganda Certificate of Education stating that he had attended Mazzoldi College in 2010, was obtained by the visa applicant paying an unnamed individual a sum of money to produce the document and was not validly issued in respect of the visa applicant. The visa applicant has admitted that the document is counterfeit and has not been issued by the appropriate authorities. The applicant knowingly provided this document to the Department in support of his application after a request by the Department to provide this specific information.

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

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

13. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), 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.

14. 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.

15. There is no information that there are any compelling circumstances that affect the interests of Australia to justify the granting of the visa.

16. It is claimed that the compassionate or compelling circumstances that are relevant is how the refusal of the visa would affect the review applicant and her husband. It is claimed the review applicant is not in the best of health and is unlikely to be able to continue her business in Cairns. She also needs assistance in caring for her husband.

17. There is little information as to the health requirements of the review applicant or her husband. There is no information as to what services are currently being provided to the review applicant or her husband or their specific care requirements. There is no detailed financial information as to the review applicant and her husband or their capacity to look after themselves or provide support to the visa applicant if he were living with them.

18. Although the review applicant believes the visa applicant would provide this assistance if he were granted the visa to enter Australia, there is nothing to indicate that the visa applicant would provide any assistance to the review applicant or have the capacity to take over the business or provide any care to the review applicant and her husband.

19. There is no information which would indicate the visa applicant has any experience in running an African hairstyling business or any business enterprise. He was described by the review applicant’s agent as “not a highly educated person, having received the most basic education only”. He claimed that he had never worked in his life, apart from doing jobs for people for food. The limited credible information as to any education the visa applicant has had indicates that he has not attended school for the majority of his youth and has achieved no academic qualifications. The Tribunal does not accept the visa applicant would have any capacity to manage or will be involved in any business in Australia.

20. The review applicant gave evidence that the visa applicant had deceived her into believing that the money she had been sending to him he was using for his education. It was claimed that the information the visa applicant provided as to Mazzoldi College was done so because he did not want to disappoint the review applicant to say that he had not been attending any college or receiving any education despite the money that the review applicant had been sending him. The review applicant said the visa applicant had lied to her. If the visa applicant has been willing to deceive the review applicant into believing that money she had been sending him was spent by him on his education, it is difficult to understand why the review applicant would believe the visa applicant, if he were granted permanent residence on her sponsorship, would provide her and her husband any support if there are no obligations on him to do so. The visa applicant has no history of providing any support for any family members and there is no information which would indicate he has previously provided for any elderly relatives. There is nothing to indicate the visa applicant would be able to provide any care needed by the review applicant or her husband.

21. The review applicant has three children who currently reside in Australia. The Tribunal accepts that these three children all have their independent lives and do not live near the review applicant. There is no information which would indicate that the visa applicant, if he were granted the right to reside in Australia, would not also start his own independent life away from the review applicant in Cairns. The Tribunal is not satisfied that if the visa applicant were granted a visa he would be willing to provide any assistance to the review applicant. Accordingly, the Tribunal is not satisfied that the care requirements of the review applicant and her husband would justify the granting of the visa.

22. The Tribunal has considered all the circumstances of the review applicant and her husband both individually and cumulatively. The Tribunal is not satisfied that there are any compassionate or compelling circumstances affecting the review applicant, her husband and any other relevant person that would justify the granting of the visa.

23. Therefore the requirements of PIC 4020(1) should not be waived.

24. On the basis of the above, the visa applicant does not satisfy PIC 4020 for the purposes of cl.117.223.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.

    Hugh Sanderson
    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. 

    …