Kaur (Migration)

[2020] AATA 1598

Kaur (Migration) [2020] AATA 1598 (15 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sandeep Kaur
Mr Manjit Singh
Ms Navharshbir Kaur
Mr Harsimran Singh Dhillon

CASE NUMBER:  1727071

DIBP REFERENCE(S):  BCC2016/3777371

MEMBER:Jennifer Cripps Watts

DATE:15 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants  Employer Nomination (Permanent) visas.

Statement made on 15 May 2020 at 4:40pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) –­ false or misleading information – criminal history – relevant in a material particular – character test – simple or innocent mistake – waiver of requirement – compelling or compassionate circumstances – impact on sponsor’s business – impact on daughter’s education – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.213; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Khan v Minister for Immigration and Citizenship [2001] FCA 75
Mala v Minister for Immigration [2005] FMCA 556
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 (the delegate) on 2 November 2017 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 11 November 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.186.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant, in a visa she held in the period of 12 months before the Subclass 186 visa application was made, gave information that was false or misleading in a material particular and that the applicant did not therefore meet public interest criteria (PIC) 4020; and that there were no compelling or compassionate reasons (as described in PIC 4020(4)) for waiving the criteria or that would justify the granting of the visa.

3. On 3 November 2017, the applicants applied for review and provided the Tribunal with a copy of the delegate’s decision.

4. The applicants appeared before the Tribunal on 25 November 2019 to give evidence and present arguments.    

5. The applicants were represented in relation to the review by their registered migration agent, Shahid Nadeem, who was also their migration agent of record at the time of the applicants’ previous Subclass 457 visa application. The applicant, second named applicant and third named applicant, all gave oral evidence at the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to refuse to grant the applicants the Employer Nomination (Permanent) visas should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issue on the review

7. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213 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).

8. Relevantly, the primary consideration in this case is whether the applicants provided information that was false or misleading in a material particular in relation to the application for the Subclass 457 visa that they held in the 12 months before the Subclass 186 application that is the subject of this review was made: PIC 4020(1)

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.  If a decision is made that an applicant or applicants would not satisfy PIC 4020, the Tribunal must then make a decision on whether the requirement that the criteria be met should be waived.

   Background

10. The applicants are Indian nationals, a family of four; the applicant, her husband and their two children, born in 2005 and 2010.  The older of the two children was born in India, the younger one in Australia.

11. The applicant arrived in Australia some years ago holding a student visa.  She has obtained Australian qualifications including an Advanced Diploma of Hospitality Management, a Certificate III in Hospitality (Commercial Cookery), and a Certificate III in Business.    

12. While holding a Subclass 457 visa, on 27 January 2016, the applicant applied for another Subclass 457 visa, on the basis of an approved nomination by Lovely Indian Sweets Pty Ltd (the sponsor).  The applicants were granted the related Subclass 457 visas on 24 May 2016. 

13. On 11 November 2016 the applicants applied for the Subclass 186 visa that is the subject of this review, including her husband and children as members of her family unit; the second, third and fourth named applicants. 

14. The delegate was not satisfied that the applicant met PIC 4020, because it was declared in the Subclass 457 application (the visa held by the applicant in the 12 months before the Subclass 186 visa application was made) that none of the applicants had been convicted of any offences.  But the second-named applicant, Mr Manjit Singh, did in fact have a disclosable court outcome, as evidenced by information contained in an Australian Federal Police Check of criminal records (the AFP Check), that was subsequently provided with the Subclass 186 visa application that is the subject of this review. 

15. In making its decision, the Tribunal has considered relevant information contained in the Department and Tribunal files, including the delegate’s decision, AFP Checks, the online visa applications for the 2016 Subclass 186 visa and 2016 Subclass 457 visa, the migration agent’s written submissions and documentary and oral evidence provided by the applicants, including oral evidence given at the hearing by the applicant, Mr Singh and Navarshbir Kaur.

16. The applicants’ Subclass 186 visas that are the subject of this review were refused because the delegate found that false or misleading information, that was relevant to criteria the Minister may consider when making a decision on an application, had been given in relation to a visa the applicant held in the 12 months before the Subclass 186 visa application was made; relevantly, a Subclass 457 visa  in this case.  This related to the criminal history of Mr Singh, the second-named applicant, which was not disclosed in the 2016 Subclass 457 application. 

17. In the Subclass 457 application made in January 2016, the applicants declared that none of the applicants for the visa had been convicted of any offences and that all information provided in the application was correct and complete.  This Subclass 457 visa was granted in May 2016.  When the Subclass 186 application was made in November 2016, the applicant again declared none of the applicants to had been convicted of an offence.  However, about six weeks after lodging the online application, on 21 December 2016, the applicant provided the Department with a Form 1023 correcting a previous incorrect answer relating to the criminal history of Manjit Singh, the second-named applicant.  An AFP Check for Mr Singh, dated 29 November 2016, was also provided certifying that in Blacktown Local Court, on 10 August 2009, Mr Singh was fined $400 for the offence of ‘Obtain Money By Deception’.  It is acknowledged by the Tribunal that the applicant corrected the incorrect answer in the Subclass 186 visa application and is mentioned because it was raised by the applicants at the Tribunal hearing.  No negative weight has been placed on this matter.

18. In both written and oral evidence, the applicants dispute that they provided false or misleading information in a material particular for the visa held in the 12 months prior to the Subclass 186 visa application, claiming essentially that the non-disclosure of Mr Singh’s 2009 offence is not a material matter relating to character, or, in the alternative it was an innocent mistake because they were in a rush to lodge the application because the visa the applicant held at the time was about to cease.  It was also submitted that in an earlier Subclass 186 visa application, made in 2014, the applicant did disclose the offence in support of the claim that it was an innocent mistake that it was not included in the Subclass 457 visa application.

19. In written submissions dated 22 November 2019, the applicant contends that she does satisfy PIC 4020(1) to meet the requirements of cl.186.213 because the omission of the second-named applicant’s criminal conviction, as confirmed in the AFP Check dated 29 November 2016, was not relevant in a ‘material particular’ as required by PIC 4050(5), such that it would not have contributed to an alternative decision’. It is claimed that ‘omission to provide information was an honest mistake’ and that ‘a decision not waive the PIC 4020 would affect the interests of Australia’.

20. Mr Nadeem cites the Federal Court in Khan v Minister for Immigration and Citizenship [2001] FCA 75 to support his submission that the information (relevant to this case) is ‘information which might influence the conclusion the decision maker might reach…’  Regardless of whether or not the Minister ultimately finds for or against the applicant relating to character, it is for the Minister to assess and decide.  Before a decision is made by the Minister, it is the Tribunal’s view that failing to provide details in a visa application of an offence for which a conviction was recorded, for ‘any applicant’, where such disclosure is required, deprives the Minister of the right to assess the applicant’s character with regard to all complete and up-to-date information. 

21. Regardless of the significance of the information or the nature or seriousness of the crime or conviction, it is information that needs to be provided and assessed, by the Minister, against whether the applicant meets cl.186.213. In the Tribunal’s view, in this case and for the reasons given, the criminal history of the second-named applicant is relevant in a material particular, at the time it was provided and when a decision was made by the delegate.

22. On 2 May 2017, when the Subclass 186 application was being assessed, the applicants were afforded procedural fairness when the Department sent them a letter, which in summary invited comment about adverse information relating to Mr Singh’s conviction that was not disclosed in the Subclass 457 visa application,  including whether they wished to claim compelling or compassionate circumstances that would justify granting the visas. 

23. The applicants responded in writing on 30 May 2017 and claimed that the omission of the information in the Subclass 457 visa application, relating to the second-named applicant’s criminal history, was an innocent or honest mistake caused by the applicants being in a rush to lodge the (second) Subclass 457 visa application on 27 January 2016 on the same day the first 457 visa expired.  Further, it was claimed that the applicants ‘could not have intentionally chosen to omit his offence in the subclass 457 visa application’ because they had provided an AFP Certificate dated 23 September 2014 disclosing the relevant offence with a previous Subclass 186 visa application lodged on 29 May 2014.    

24. With the response to the Department’s letter, provided on 30 May 2017, the applicants provided a statutory declaration, sworn by Mr Resham Singh, an Australian citizen, on 29 May 2017.  Mr Resham Singh is the sponsor.  In summary, Mr Singh declares that the applicant is a ‘very skilful cook’, that she had (at that time) worked for him holding a Subclass 457 visa for four years, that there is a shortage of skilful and experienced Indian cooks in Australia and that ‘Ms Kaur will be a blessing for the business’ and if her visa is not granted his company will be ‘greatly disadvantaged’.  The applicant also provided a statutory declaration in response, declaring that she intends to work for Mr Resham within six weeks of her Subclass 186 visa being granted. 

25. The Tribunal has carefully considered evidence it considers relevant to the determinative issue on the review.  It was incumbent on the applicants, when making the January 2016 Subclass 457 visa application, to give correct information.  For the reasons given, the Tribunal does not accept that a simple mistake was made when it was declared by the applicants in the Subclass 457 visa application that no person had any convictions recorded.  Referring to the Department file in this case, AFP Checks for Mr Singh had been generated in 2014 and 2015, and provided to the Department, clearly indicating that the applicant’s husband, Mr Singh, did have a disclosable court outcome and conviction for which he was fined $400.  To have been issued, the AFP Checks in 2014 and 2015 were clearly applied for before the Subclass 457 visa application was made in early 2016. 

26. When entering answers into the Subclass 457 visa online application in January 2016, it is reasonable to expect that the applicants and/or their migration agent read the questions and considered them before deciding on their answers; that is, whether to answer ‘Yes’ or ‘No’.  An answer, ‘No’, was entered to the question of whether any applicants had been committed an offence, at page 10 of 16.  As noted above, at the time of the visa application, two AFP Checks had already been generated for Mr Singh (in 2014 and 2015), each one certifying Mr Singh’s disclosable court outcome in 2009.  In addition, it was declared by the applicants that they had read and understood, and provided complete and correct, information in ‘every detail’ on the form.

27. The Tribunal does not accept, even if someone was in a rush, that they would read the question and answer ‘No’, when it was clear that they knew the answer to be ‘Yes’.  Then, further on in the form, knowing they had rushed, declare all information to be complete and correct.  While the Tribunal accepts that the relevant Subclass 457 visa application was made on the same day the previous one ceased, the Tribunal is not satisfied that the applicants were in such a rush, if at all, that they did not take care to answer questions correctly.

28. In providing the incorrect information about Mr Singh’s criminal history in the Subclass 457 visa application, the applicants deprived the Minister of the opportunity to be ‘…satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test…’:  s.501 of the Act.   Notwithstanding that it has been submitted by the applicants that Mr Singh’s offence was a minor one, and not ‘substantial’, and also submitted, on that basis, that it was highly likely Mr Singh would have passed the character test if the information had been declared and assessed by the Minister, it is not for the applicant to make that judgment call when lodging a visa application; that is, what they think would be relevant to the criteria the Minister may consider. 

29. There are several police checks on the Department file for Mr Singh and for the applicant, including two AFP Checks for Mr Singh that pre-date the January 2016 Subclass 457 visa application:

    a.AFP Check for Mr Singh, dated 23 September 2014, certifying the disclosable outcome for the offence of ‘Obtain Money By Deception’ in 2009

    b.AFP Check for Mr Singh, dated 26 November 2015, certifying the 2009 court outcome .

30. In the Tribunal’s view, it cannot have been anything other than plainly obvious to the applicants that, when the Subclass 457 visa application was made, Mr Singh had been convicted of an offence.  The AFP Checks for him dated 23 September 2014 and 26 November 2015 were, it is reasonable to think, already in the applicants’ possession.  Both of the AFP Checks contain identical information relating to Mr Singh’s ‘disclosable court outcome’, which appears to convey the clear meaning that it is disclosable and therefore, logically, not ‘non-disclosable’.  The question in the Subclass 457 online application form is clear and was answered ‘No’ by the applicant:

    Q.Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records?

31. The answer ‘No’ was actively entered instead of the answer ‘Yes’ to the above question.  Even if the applicant was unsure whether to answer ‘Yes’ or ‘No’ to the question on the basis of the claim that they thought it was a very minor offence at the lower end of the scale, the Tribunal also does not accept this as a reasonable excuse for not providing correct information in the Subclass 457 visa application.  If the applicants were unsure about what was or wasn’t a disclosable offence, it was incumbent on them to ensure they were providing a correct answer.  The applicants should have, and could have, clarified what needed to be provided.  They had a migration agent assisting them with the Subclass 457 application (as indicated in the online application) and it would have been a simple matter to check with him, if there was any doubt.

32. For these reasons, it is implausible, in the Tribunal’s mind, notwithstanding the detailed reasons and excuses that have been provided by the applicants and their migration agent, that they could have overlooked, forgotten, or simply not provided the information about Mr Singh’s court outcome in the Subclass 457 application because they were in a rush lodging the visa applications, or for any other reason, including that of simple or innocent mistake as has been submitted.  Nor does the Tribunal accept that Mr Singh’s character, relating to an offence that was submitted not to have been substantial, was not a material matter.  That is a matter for the Minister to decide.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

33. 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.

1. 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.

2. 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.

3. The Tribunal is satisfied that the applicants were aware of the existence of the AFP Checks for Mr Singh, containing information about a disclosable court outcome.  The Tribunal does accept that the claims of being in a rush, forgetting, thinking the offence was not serious enough to engage the obligation to disclose it or making an innocent mistake, given the finding that the applicants were aware of the offence in Mr Singh’s AFP Check, to be credible. 

4. The Tribunal finds that the applicants gave information that was false or misleading in a material particular’ as defined in PIC 4020(5), and relevant to assessment by the Minister of the character of the second-named applicant, as specified in PIC 4001 of Schedule 4 to the Regulations.  The Tribunal is satisfied that the information relating to a conviction for an offence by one of the applicants for the visa was false or misleading at the time it was given, in relation to the Subclass 457 visa held in the 12 months before the (Subclass 186) visa application was made.

5. 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)?

6. 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). 

7. There is no evidence before the Tribunal that the applicant or any member of the family unit have previously been refused a visa because of a failure to satisfy PIC 4020(1).

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

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

9. 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.

10. 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.

    Compelling or Compassionate Circumstances

11. The Tribunal has considered relevant written and oral evidence in reaching its decision about whether or not the requirements of PIC 4020(1) should be waived.

12. There are two bases on which the Tribunal  consider waiving the requirements of PIC 4020(1) and that justify the granting of the visas:

    a.If there are compelling circumstances that affect the interests of Australia, or

    b.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,

13. The substance of the applicants’ written submissions, provided by their migration agent, are that the Tribunal should find that they do meet the PIC 4020(1) requirement.  The Tribunal has already considered and given reasons why the finding has been made that PIC 4020(1) was not met. 

14. The applicants and their migration agent submitted that if the Tribunal found they did not meet PIC 4020(1), that it would be in the interests of Australia to grant the visa. 

15. The waiver to PIC 4020 is addressed, at page 9. of the written submissions dated 22 November 2019.  It was also addressed at the Tribunal hearing.  In the written submissions, it is pointed out that ‘compelling’ and ‘compassionate’ are not defined, the case of Mala v Minister for Immigration [2005] FMCA 556, Barnes FM at 21, is cited where the meaning of ‘compelling’ and ‘compassionate’ are considered. Reference is also made to Department policy (PAM3). In the written submissions was also included that:

    ‘… the ordinary meaning of the terms will apply and the delegate is required to make an assessment of the applicant’s claims and determine whether, in their view, they are of a compassionate or compelling nature.’

16. The written submission made in favour of the waiver was this:

    ‘The applicant is a professional and skilful cook who has been working in the occupation for many years now.  If the applicant’s visa application is refused and the applicant had to leave Australia, it would deprive Australia of the skills of the application.’

17. The Tribunal is not satisfied there is any verifiable or recent evidence to support a finding that the sponsor, an Australian citizen, would suffer such (or any) hardship as to be considered a compelling or compassionate reason to justify the granting of the visa.  Nor that depriving the sponsor of the opportunity to employ the applicant as a cook, even a skilful one, would be a compelling circumstance that would affect the interests of Australia. 

18. When the sponsor swore the 2017 statutory declaration, it is clear he thought very highly of the applicant’s skills as a cook and that he said finding a good Indian cook is not easy, which may be the case, although evidence of this was not provided.  The Tribunal does not consider the applicant’s skills and qualifications as a cook to be in dispute.  However, nor are Indian cooking skills considered by the Tribunal to be at a level that, if this applicant was not able or permitted to use her skills in Australia, it would be in the interests of Australia to waive the PIC 4020(1) requirement.

19. The applicant gave oral evidence that she is in regular contact with the sponsor and there is no reason for the Tribunal to think that this is not the case.  At the hearing the applicant was asked how the sponsor’s business is going and was told that he has started a catering business in Blacktown doing parties, which would appear to suggest on the face of it that the business is currently doing well, or at the very least the sponsor is not suffering hardship. 

20. The Tribunal heard evidence from the second and third named applicants.  It is acknowledged that Mr Singh is extremely remorseful about the offence and how it may affect their visa outcome.  The applicant’s daughter gave very heartfelt and credible evidence and expressed a concern that, if she had to return to India to live, she would struggle with the language barrier.  She has lived in Australia and attended school here since she was a small child and, by all accounts, is a dedicated student who has well-formed career aspirations including undertaking tertiary education when she finishes high school. 

21. However, none of the applicants is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen and, unless they are in one of those classes of person, compelling or compassionate circumstances cannot be considered, on the basis they will suffer hardship, to them to justify the grant of the visa.

22. The Tribunal asked the applicant whether she has any close family in Australia and it is accepted, on oral evidence elicited by the Tribunal from her at the hearing, that she has a sister who is an Australian citizen who lives in Australia with her husband and two children.   The applicant describes herself as ‘very emotionally attached to’ her sister and said their four children, aged from 5 to 15, are also very close.  The applicants live in Sydney and the applicant’s sister and her family, although formerly of Sydney, now live in Brisbane due to work commitments.  There was no specific claim made that there are compassionate or compelling circumstances relating to the applicant’s sister that would justify the granting of the visa and the Tribunal does not consider, in the circumstances, that this matter would justify waiving PIC 4020(1).

23. In the circumstances of this case, the requirements of PIC 4020(1) should not be waived.

24. On the basis of the above, the applicant satisfy PIC 4020 for the purposes of cl.186.213.

25. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Resident Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the TRT stream have not been met, the decision under review must be affirmed.

    Secondary applicants

26. As the Tribunal has affirmed the decision to refuse the visa for the applicant because PIC 4020(1) is not met, on the basis that the secondary applicants are not members of the family unit of a person who has satisfied the primary criteria and holds a Subclass 186 visa, the decision to refuse the visas of the secondary applicants must also be affirmed.

    DECISION

27. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) visas.

    Jennifer Cripps Watts
    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. 

    …