Kandel (Migration)

The Administrative Appeals Tribunal (AAT) considered a review concerning a Regional Employer Nomination (Permanent) visa (Subclass 187). The primary applicant sought the visa, with secondary applicants also named. The core of the dispute revolved around allegations that the applicants had provided a bogus document and misleading information in relation to the visa application, specifically concerning a relationship/family registration certificate.

The Tribunal was required to determine whether the visa applicant met Public Interest Criterion (PIC) 4020, which mandates that an applicant must not have provided a bogus document or false or misleading information in relation to the visa application or a previous visa held within 12 months. It also required the applicant and family unit members to not have had a visa refused due to a failure to satisfy PIC 4020 within specified periods, and for the applicant to satisfy identity requirements, with similar conditions regarding previous visa refusals. The Tribunal also had to consider whether any waiver provisions under PIC 4020(4) were applicable, noting that these did not extend to identity requirements.

The Tribunal reasoned that the definition of a "bogus document" under section 5(1) of the Migration Act 1958 (Cth) does not require the document to be relevant to a criterion for the grant of the visa, unlike the definition of "information that is false or misleading in a material particular" under clause 4020(5). It was noted that PIC 4020 applies regardless of whether the department became aware of the issue through information provided by the applicant, and whether the document or information was provided knowingly or unwittingly. However, the Tribunal acknowledged that an element of fraud or deception by some person is necessary for the provision to apply. In this instance, despite inconsistencies in the family registration certificate, the Tribunal found that the applicant and second named applicant provided consistent evidence regarding their son's birth, and that accurate records were not kept in their village. A credible witness also updated the Department of the applicant's change in circumstances.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal found it had no jurisdiction to consider the claims of the secondary applicants, as they were outside the migration zone.