Hsieh (Migration)

[2021] AATA 189

Hsieh (Migration) [2021] AATA 189 (20 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yu-Ting Hsieh

CASE NUMBER:  1930343

DIBP REFERENCE(S):  BCC2019/2728732

MEMBER:Meredith Jackson

DATE:20 January 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 20 January 2021 at 8:32 pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – false or misleading information in visa application – previous visa refusal not declared – claim to have been unaware of refusal because of technical and language difficulties – compassionate circumstances – registered relationship with Australian citizen – partner’s health and applicant’s care – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217(1), 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

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 22 October 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 May 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found false and misleading information in a material particular was provided by the applicant in an application for a visa that she held in the 12 months before the application was made.

3.    The applicant was represented in relation to the review by her registered migration agent (representative). The hearing was originally scheduled for 13 October 2020. The representative requested a postponement due to a major health issue that was affecting her own ability to support the applicant, for which evidence was provided. The Tribunal granted the request and the hearing was postponed for three months.

4.    The applicant appeared before the Tribunal on 18 January 2021 at 11:00am to give evidence and present arguments. The Tribunal also received oral evidence from witness Robin Thomas Prokop.

5.    The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. At the start of the hearing, the Tribunal sought clear instructions from the applicant as to how she preferred to utilise the interpreter. She initially required all communication to be interpreted and she indicated she would raise with the Tribunal any difficulties she was having and signal her need to speak through the interpreter. During the hearing, the applicant frequently spoke to the Tribunal in English. The applicant used the services of the interpreter for most of the hearing.  The Tribunal notes the applicant, in the hearing, gave no indication of a failure to understand the interpreter. On several occasions, she claimed she did not understand the Tribunal’s questions, but there was no suggestion that there was an ongoing problem with interpretation. The applicant and the witness were regularly reminded to speak in limited bursts, to allow the interpreter a chance to perform his work. The witness spoke fluently in English. All his evidence was interpreted for the benefit of the applicant. The applicants frequently talked at greater length at times than seemed reasonable, and the Tribunal reminded them of the need to consider the interpreter. The applicant’s representative did not raise an objection to the performance of the interpreter in the hearing and there was no request for a different interpreter. At 3:49pm on the day of the hearing, the applicant submitted through her representative, in an email to the Tribunal, that she had at times experienced difficulty understanding the interpreter.

6.    In the hearing the representative stated that the parties may seek frequent breaks in proceedings, and the Tribunal said these would be granted on request.  No such requests were made in the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.500.217(1) for the grant of the visa. Broadly speaking, this requires that:

·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

9.    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?

1. 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.

2. 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.

3. 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.

Case summary

1. The Ms Yu-Ting Hsieh, a 31-year old university graduate, is currently studying cookery in Australia. She is a citizen of Taiwan. She does not dispute that on 27 May 2019, in her application for the subclass TU500 student visa under review, she answered ‘no’ to a question about whether she had ever had a visa refused. This was false information: on 27 May 2019, she was refused a Working Holiday (Extension) (Offshore) subclass TZ 417 visa. In August 2019, Ms Hsieh sought from the primary decision maker, a waiver of Public Interest Criteria, claiming she made an error due to impeded access to her immigration (IMMI) account. On review, she is claiming the waiver on a different basis, that of compassionate circumstances existing in a registered relationship into which she has since into with Australian Robin Thomas Prokop, aged 67.

Documentary and oral evidence provided to the Tribunal

Written submissions

1. The applicant provided the written submissions to the Tribunal including, but not limited to:

   a.The delegate’s decision;

   b.Applicant’s academic documents including attendance records; fee receipts and Confirmation of Enrolment documents (COE);

   c.Representative submission requesting waiver of PIC 4020;

   d.Statements by Rebeckah Sloggett and Alexa Simpson (Mr Prokop’s daughters) attesting to the role of Ms Hsieh as their father’s carer; support statement by Matt Cunningham; support statement by Ron and Mary Prokop, support statement by Mark and Bronwyn Scofield; support statement by John Simpson; support statement by Andrew Eagleston attesting to the applicant’s character; medical evidence concerning Mr Prokop and several severe health issues including a stroke and two rounds of knee surgery currently requiring him to receive ongoing care;

   e.Information provided to the Department in May 2015 by the applicant regarding aspects of the visa application subsequently refused; evidence of correspondence between the Department and applicant including relevant 2015 visa application and refusal documents;

   f.Natural Justice letter response regarding the visa under review, claiming technical difficulty with the applicant’s IMMI account.

Delegate’s decision

1. The key points of the delegate’s decision are, in summary, that:

   a.The non-declaration of the prior refusal of a Working Holiday (Extension) visa application has a direct impact on the assessment of the Genuine Temporary Entrant requirements for the Student visa application. Therefore, the applicant has given information that is false or misleading in a material particular in relation to the assessment of the Genuine Temporary Entrant criteria of regulation 500.212.

   b.On 27 May 2019 in the Student visa application form, the applicant provided false claims in answering the question as to whether she had ever had an application for entry refused; she stated “no”. This information was considered non-genuine because on 31 July 2015 the applicant was refused a Working Holiday (Extension) visa;

   c.On 17 July 2019 the applicant was sent a s.57 Natural Justice letter inviting comment; her representative responded with submissions that the applicant had experienced technical issues accessing her IMMI account which meant she was unaware of the working holiday visa refusal; she sought a waiver of PIC 4020 on the basis of “exceptional circumstances beyond her control (immiaccount and crush)”;

   d.It is the applicant’s responsibility to ensure all information provided in an application is correct; the delegate considered there was not a mistake, it was more likely the applicant purposely misled the department;

   e.The applicant made no claims seeking a waiver on the basis of compelling or compassionate circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen or others;

   f.The applicant did not meet PIC 4020 for the purposes of cl.500.217.

2. The Tribunal has also had regard to Tribunal and Department files.

The hearing

1. The Tribunal questioned the applicant in the hearing about the findings in the delegate’s decision and related matters. The applicant stated in response to Tribunal questions:

   a.Whether the applicant gave wrong information in her application for the student visa under review: In 2015 her English was not good, she could not read or write any English and she could not log in to her IMMI account. She found out in July 2019 from her agent that she had provided wrong information. After six months she applied again and was granted a working holiday visa; then later, a student visa. She worked in fruit picking, doing housework, and in massage.

   b.What she did to report the login problem: She sent “a few letters” to the department about the difficulties she had logging in to the IMMI account, but it did not help her; it was made harder by her lack of English. (Her representative commented that she had provided the Tribunal extensive written records in support of the claim);

   c.Does she accept she gave false information? She accepts now that she gave wrong information in the student visa application. But she did not lie to the department;

   d.Why in her 2019 response to the department she sought a waiver of “Public Interest Criterion” on the basis of exceptional circumstance beyond her control yet now, on review, she is seeking the waiver on the basis that she is in a committed relationship and needs to care for her partner, a 67 year-old Australian citizen with health issues whom she met in February 2018. The applicant said she could not understand the question, but she did not lie to Australia. The Tribunal, rephrasing the question, (which it did a number of times), stated that she initially sought the waiver from the department based on communication difficulties; but now, in her review submissions, she was seeking the waiver because of her partner’s needs; it might appear that her reasons for seeking the waiver were changing to suit her circumstances. The applicant responded: “Well at the moment I am more focussed on finishing my diploma course in 18 months’ time. I am not thinking about my partner, because 18 months is a long time and any plan can change. I did not lie to the Australian government and I don’t understand why you are asking me about the relationship in 2020”.

   a.Regarding the many submissions provided to the review about the relationship, which aspects in particular might be taken into account:  Her partner has a medical problem and if she goes back to Taiwan there will be no-one to take care of him and because they are partners, she worries. His daughters live in Sydney, far away;

   b.Regarding how the two parties met: She was working in massage and she met him in Woolworths at the shopping centre. They registered the relationship because she loves him, and she wants to take care of him;

   c.Concerning her current role with Mr Prokop:  He has had knee replacement surgery and cannot walk and he has to lie in bed. He pays all her expenses; she does not work, she studies, cooks, cleans and supports his daily needs;

   d.Concerning her education and life plan: She has a Bachelor of Computer Science and Information Engineering which she studied because her father wanted her to; she does not like the field, she likes cookery. Her mother pays her tuition fees and she studies online because of COVID. When she finishes her diploma she wants to work in cookery. Asked how that would fit with her plan to provide extensive care for Mr Prokop, she stated: “I don’t know, 18 months is a very long time, at the moment I want to finish my course. I want to go back to Taiwan and be a chef or be an international chef in Australia.”

   e.As to whether in the light of her relationship and life plans, she has a settled intention to remain in Australia: She would prefer to go back to Taiwan but because of COVID she is scared to go. As to how she reconciled her ambition to graduate and return to Thailand with looking after Mr Prokop, she stated:  I want to study and take care of my partner too and after that, go together to Taiwan. In 18 months he will get better and COVID 19 will be finished.

   f.As to her intentions to apply for other visas: She has not applied for other Australian visas.

Witness evidence

1. Robin Thomas Prokop was present throughout the hearing. He gave evidence that:

   a.The parties met in February 2018; he had taught Ms Hsieh English and had followed her immigration case closely. He could see that her IMMI account had major problems that she could not understand. She is doing her third and fourth cookery classes, with his help doing her assessments and so on, and she really wants to finish her schooling. She wants to finish her Advanced Diploma and from there the two will reassess their commitment to each other. He had had three operations: a stroke in 2019, keyhole surgery in April 2020 and a knee reconstruction in November 2020;

   b.Asked what he meant by “reassess their commitment to each other” when Ms Hsieh graduates, he stated:  What I mean is, we get on really well together now, and live as de facto, and she really looks after me and takes me to doctors and medical appointments and cooks and so on; my daughters can’t come up here because of COVID 19;

   c.As to the future, he stated: “We will always be together, we have discussed that, so please give her a fair go. Lift this ban and please give her a visa, if she goes back to Taiwan it could have devastating problems for me as I can’t fly. And three years is a long ban for a simple mistake in her visa application. Yu-Ting and I are in love and would love to stay together and I just hope the Australian government can see and understand where the problem is.

Analysis and conclusions

1. The Tribunal is satisfied there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, information that is false or misleading in a material particular’ as defined in PIC 4020(5), i.e. information that is false or misleading at the time it is given, and relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information, in relation to the visa application. This conclusion is reached for the following reasons.

Was false information given?

1. As recorded earlier in these reasons, the applicant does not dispute that information provided in her Student visa application of May 2019 was false, she accepts that she did not declare a visa refused. She claims she was unaware that she had been refused the Working Holiday (Extension) visa in 2015 because at the time, she could not log in to her IMMI account and had language difficulties. She claims she was unaware until July 2019 that the visa had been refused. However while she now knows it was wrong information, it was not, she claims, purposefully false. The Tribunal concludes that false information was given.

Purposeful falsity: was there an element of fraud or deception?

1. While PIC 4020 refers to information that is false, in the sense of purposefully 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.

2. The applicant’s central claim is that the false information was provided without an element of deception on her part because she was not aware, at the time, that the Working Holiday (Extension) visa had been refused.  She claims to have made an innocent error. She states that the first she heard of the refusal was when the Department wrote to her in July 2019 asking for comment.  She notes she formally notified the correct answer to the Department when made aware of the falsity.

1. To accept the applicant’s claim of innocent error, the Tribunal must accept that the applicant genuinely lost control of her application for the Working Holiday (Extension) visa refused in July 2015 and did not receive the relevant request for information or later notification that the visa had been refused, sent to her by the department.

2. In support of her arguments that there was no purposeful falsity, the applicant has provided extensive records of her attempts to clarify issues with the department, including details of correspondence about process and online access problems she was having. The Tribunal having examined the material accepts that the applicant made significant attempts to communicate with relevant Departmental authorities about a number of aspects of her application for the visa. Accordingly, for the purposes of this decision, the Tribunal accepts that access and language issues may have affected, to some extent, the completion of the process of applying for the visa. However the Tribunal is not satisfied that these disruptions explain the key claim that she did not know about the outcome of the application. She subsequently successfully completed several visa applications. The Tribunal notes that two visas were subsequently granted to the applicant, a Working Holiday visa in February 2016 and a Student visa in February 2017, despite the visa refusal in 2015. The Tribunal accepts that this may have given the applicant courage to assume that whatever had happened in 2015, it had not affected her chances of being granted visas. That said, any such comfort is not an offset for the applicant’s responsibility to provide the truth when applying for any visa or seeking review.

3. Submissions the applicant provided to the Tribunal in support of her claim that she did not know the visa had been refused include correspondence the Department sent to her in relation to the Working Holiday (Extension) visa application, including a request for information sent via her registered email address in May 2015, and the delegate’s refusal decision sent to her via the same method on 31 July 2015. It bears emphasis that the applicant has not claimed that Departmental correspondence was not received; rather, that whenever correspondence was received, it was in English so she could not understand it, or could not get through to appropriate authorities to clarify it. The Tribunal has considered the likelihood of this scenario unfolding as she describes, and having done so, does not accept that she could not have overcome such difficulties by the engagement of advice or interpretation by a professional, or even another person who speaks English.

4. It is notable that the applicant has claimed technical and language issues were experienced during the application process and this might enliven the waiver; and, as will be discussed later in these reasons, at the time of this decision, she primarily cites the needs of her partner as justification for the waiver.

5. Weighing all the evidence and arguments provided to the Tribunal in extensive submissions, including all the evidence of communications with the Department, against the relevant facts of the case, such as the falsity of the information provided and the proper notification of the applicant regarding the visa refusal, the Tribunal is not satisfied that the applicant was unaware, in 2015 or until 2019, that she had been refused a visa. It is clear from her submissions that the Department in 2015 took all appropriate steps to advise the applicant of the need to provide further information, and in the absence of a satisfactory response from her, appropriately provided a negative decision and notified the applicant of that decision. There is no convincing evidence before the Tribunal she did not receive the correspondence. As the applicant has not provided convincing evidence that she was unaware of the application’s fate, the Tribunal concludes that she has deliberately misled the department about the refusal and provided false information because she wanted to conceal the fact of the refusal.

Responsibility for providing information in a visa application

1. In reaching the view above about the applicant’s responsibility for the provision of information, the Tribunal has relied on the authority in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42, in which the Court held that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support an application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant.

2. The Tribunal accordingly, concludes the applicant acted deceptively in relation to the non-declaration of the visa refusal and was responsible for the provision of false information in her student visa application.

3. On the basis that the applicant provided false or misleading information in her student visa application, the Tribunal finds the applicant does not meet PIC 4020(1).

Consideration of the waiver

1. 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.

2. 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.

3. As mentioned earlier in these reasons, the applicant has made two separate claims over time in her case, each in turn seeking to enliven the application of the waiver and the grant of the visa. Those claims are:

   a.In 2015 the applicant experienced communication and technical difficulties that prevented her from knowing the visa had been refused; she was not made aware until 2019;

   b.That she is in a registered, de facto relationship with a partner to whom she is sole carer; as an Australian citizen he would be profoundly affected if she were refused the visa;

4. While the former request was made in August 2019 to the Department, the latter to the Tribunal on review. The Tribunal has duly considered each claim in turn. It finds no compelling or compassionate circumstances in the claim of communication and technical difficulty with the Working Holiday (Extension) visa application that would enliven the waiver on the basis that the false information given was not purposefully false.

5. With regard to the second claim, concerning compassionate circumstances in the applicant’s relationship with Robin Thomas Prokop, a relationship registered in January 2020, the Tribunal, having considered all the evidence before it, finds no compelling or compassionate circumstances in the claim, which is that the applicant is essential to the support of Mr Prokop, and that the parties are in a de facto relationship and this justifies the waiver.

6. In reaching this view, the Tribunal has considered the evidence provided from witnesses to the relationship, including Mr Prokop’s two daughters, who have attested to the role of Ms Hsieh as their father’s carer and its value to him; and has considered friends and family statements including those which refer to the existence of a de facto relationship. The Tribunal has taken into account medical evidence that Mr Prokop has suffered several severe health setbacks, including a stroke and two bouts of knee surgery which currently require him to receive extensive care. The Tribunal is in no doubt, on the evidence, that Mr Prokop requires care. And it notes the support for this view offered by those who have submitted in the hope of helping Ms Hsieh remain in Australia to provide it.

7. The Tribunal has also considered the applicant’s claims in the hearing, broadly endorsed by Mr Prokop, that the circumstances in which the two claim to be committed to one another is subject to review in 18 months’ time, when the applicant’s final course of study is completed. Ms Hsieh was equivocal about the relationship’s future in the hearing, stating on the one hand that it is a genuine partnership, and what seemed to be on the other: “I don’t know, 18 months is a very long time, and anything could happen. At the moment I want to finish my course. I want to go back to Taiwan and be a chef or be an international chef in Australia.”Mr Prokop stated in the hearing: “She wants to finish her Advanced Diploma and from there we will reassess our commitment to each other,” and, “If she goes back to Taiwan it could have devastating problems for me as I can’t fly. Yu Ting and I are in love and would love to stay together and I just hope the Australian government can see and understand where the problem is.”

8. It is not within the scope of this review to fully assess the genuineness of the relationship. The parties have registered a relationship, but the applicant has not applied for a Partner visa. The Tribunal accepts that Mr Prokop and Ms Hsieh live together on some basis, and Mr Prokop may experience difficulty in seeking care arrangements to equal of those he enjoys currently. However it notes that he has family in a neighbouring state and that he has not given evidence that he could not seek care for himself on that or some other basis.

9. The Tribunal has considered the applicant’s claims to the waiver, however notes that when the Tribunal pointed out to her in the hearing that she appeared to have altered the grounds on which she seeks it,  she gave no convincing response as to why that was the case or not. She said only that both reasons applied.

10. As recorded earlier in these reasons, the applicant complained frequently in the hearing that she did not understand some questions, even when they were rephrased by the Tribunal with the interpreter assisting. The Tribunal is satisfied it put all its questions to the applicant clearly and with considerable patience and persistence. In the end, it found the applicant evasive and dismissive, and concludes she was likely to be deploying an evasive tactic designed not to offer statements that might imperil the review. This does not assist the credibility of her evidence.

11. The Tribunal, having considered all the applicant’s evidence, concludes that at best, the parties are committed to each another on some level for the next 18 months, while the applicant completes her diploma. This commitment, however, is to a practical and short-term relationship, rather than a genuine and enduring one, so is not a justification for the waiver. If Mr Prokop’s needs for personal care could not be overcome by any other means, application of the waiver might yet be justified, however the Tribunal is not satisfied this is so. The Tribunal finds the applicant’s circumstances do not fit a reasonable assessment of compelling or compassionate circumstances affecting an Australian citizen or other relevant parties. Accordingly, the requirements of PIC 4020 (1) should not be waived.

12. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217(1).

13. The applicant does not claim to meet the criteria for any other subclass within the class of visa sought.

DECISION

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

Meredith Jackson
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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. 

…