Mokonen (Migration)

This matter concerned an application for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan relative), by visa applicants who had provided death certificates for their parents. The review applicant sought to have a decision affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the visa applicants satisfied Public Interest Criterion (PIC) 4020, as required by clause 117.223 of the Migration Regulations 1994. This criterion encompasses several requirements, including the absence of bogus documents or false or misleading information provided in relation to the visa application or a previous visa, and not having had a visa refused due to a failure to satisfy PIC 4020. The Tribunal also considered whether any waiver of these requirements was applicable.

The Tribunal reasoned that the definition of a "bogus document" in section 5(1) of the Migration Act 1958 does not require the false or misleading statement 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" in PIC 4020(5). It was noted that PIC 4020 applies regardless of whether the Minister became aware of the bogus document or false information through the applicants' own submissions, and whether the document or information was provided knowingly or unwittingly. However, an element of fraud or deception by some person is necessary for the provision to apply. The Tribunal concluded that the applicants did not satisfy PIC 4020.

Consequently, the Tribunal affirmed the decision not to grant the Child (Migrant) (Class AH) visas to the applicants.